Civil Law, Common Law, and Constitutional Democracy

Transcript

1 Loui siana L w aw R evie | Numbe r 1 Volume 52 Sep tem ber 1991 ommon L Civil L nd C ons titut ion al aw, C aw, a emo cr acy D alt . M ur ph y W er F ory Citation Reposit mmon L ocracy nstitutional D nd Co aw, a , 52 L aw, Co Civil L Walter F. Murphy, a. L. Rev. (1991) em igitalcommon ss1/6 Available at: https://d s.law.lsu.edu/lalrev/vol52/i ree and ope This Article i en accepted for s. It has be gital Common aw Reviews and Journals at LSU Law Di n access by the L s brought to you for f ized editor of L ouisiana Law Review by an author inclusion in L lease contact mation, p e infor s. For mor gital Common SU Law Di . [email protected]

2 Civil Law, Law, Common Constitutional Democracy and Murphy* F. Walter of Contents Table 91 I. Introduction ... 100 Democracy ... Constitutional II. 101 ... Theory A. Democratic 104 Constitutionalism B. ... ... 109 Democracy C. Constitutional of a Constitution ... III. Concepts 113 114 Include? ... What the Constitution A. Does 116 Authoritative the Constitution? ... B. How is 117 ... Functions? Constitution's What Are C. the 121 a Constructing ... IV. Constitution 121 a Text? ... A. Why Drafting B. Text ... 129 the ... 129 Political Culture The 1. New Legitimator ... 129 Legitimating 2. the Necessity of Compromise ... 131 3. The 133 Civil & Constitution Making ... Law V. The INTRODUCTION I. earth was In tells us, chaos reigned: "the the beginning, Genesis of the abyss, and darkness over the face without and void, with form surface mighty that swept over the wind of the waters."' Operating a void, galactic the fill to days only six needed deity macro-level, a at the sculpt then abyss a planet for human habitation. But, we from the by LAw 1991, Rsview. Copyright LOUISIANA University. This article is part Princeton of Jurisprudence, Professor McCormick Council American the by of sponsored democracy constitutional study larger a of of Fund Societies a grant from the Ford Foundation. The Boesky Family through Learned Center Peter B. Lewis Fund of the University of International Studies of Princeton the and Class Princeton provided support. I am indebted to Martin di Santos of the also have of research assistance and to Prof. Mark E. Brandon of the University for 1993 of earlier Judith Lynn Failer of Princeton University for critical readings of and Oklahoma versions of this manuscript. chaos is 1:1-2. Translations vary, of course, but the picture of initial I. Genesis Testament, Bible: The Old published jointly by common. have used I The New English in 1970. Oxford and Cambridge University presses

3 LOUISIANA REVIEW LAW [Vol. 52 Yahweh was into micro-management. Millennia might speculate, not mortals we later, mere cope to trying are with still and chaos residual form to impose on and our ourselves world. "Getting it together" all even is on more a national difficult than international or scale at it is personal a of level. Indeed, much what outside and inside do we of attempts politics of calm the mighty to wind passion that human con- stantly away. sweep threatens to mankind course, of Law, among obvious the is more channel to efforts the study passion, and aid that campaign by of law tries to outlining coherent constitutions Constructing strategies. and creating theories to explain justify and those constitutions are products legal larger of that project. however, These operations are, and more both specific more general-more because specific, constitutions typically them- proclaim selves more of the "law"; part genus general, because constitutions are more law. much than They are also exercises in practical And politics. that account theories and for justify constitutions on rest, ultimately, arguments philosophy. political from Thomas sneered at Hobbes to tame to use efforts language passion's power: words being "[Clovenants but and force have breath, to no oblige, contain, protect man, but any constrain, or what it has from 3 Sword" publique the believed, that could -an instrument, he be effec- by wielded tively only was to who a close despot omnipotent over his a half centuries and subjects. Three still share much later, we Hobbes's of cynicism. shouts experience Common often people out that lie when their pledging honor, or individual collective initially and, even when they mean keep their compacts, to frequently temptations to succumb to vows in order violate pursue to appears what to be self-interest. Thus and seriously willingly forging of undertaking the task con- a stitutional reflect either seems text to one's certainty arrogant in own trust in or ability romantic human goodness the nature. of alter- Both suggest natives of the world and ignorance real magical naive faith in the 4 ' power of words to stay "the power. we do have some lash of Yet chemistry-or A successes. political alchemy-can sometimes turn sheets into hoops of steel. Therefore, we need a theory of account paper to this for mixed is record. it What that not or happen, happens, does to effective make some constitutions others unavailing? and The standard claim of constitutional law of partake to texts makes reasonable it prevailing look to to jurisprudential the notions for be- This speculation 2. "God," is certainly contestable. according van der Rohe, Mies to the details." Quoted in "is in Ash, After (Book Review), Poland Solidarity N.Y. Rev. (June at Books 49 She finds where one Perhaps Her. 13, is 1991). Leviathan, Pt. II. Hobbes, 3. T. at 123 (R. ch. ed. 1991). 18, Tuck The 4. phrase Carrington's. Of Law and Paul Carrington, is 34 the of River, J. Educ. 222, Legal 226 (1984).

4 19TH LECTURE TUCKER 19911 of an If, in ginnings answer. legal fact, system a controls network a wide human of interacts inevitably relations, it the culture, with broader influence by The flows of shaped sometimes it, it. shaping sometimes although they vary over time; and, to' not perfectly are likely ever be extent symmetrical, to the a system legal is effective, infuse also it will its norms into the values culture in which the of larger is law embedded. particularly, Most an influences law effective what body of of its most substantively as subjects view among just and between in relations citizens the as well as citizens and state subjects to be fair its what deem processes controversies at to resolve individual, and societal, govern- mental levels. preeminent The constitution-making off was feat pulled than more ago a backward in two centuries nascent developing country but whose systems legal the Common Law. were offshoots of If success we measure by continuance over time, pair of Common Law a Canada countries, and (1867) (1900), generated Australia most the con- other "successful" democracies. stitutional course, of make a one And, can plausible, if fully argument not convincing, is constitutional democracy Britain that a been operating under and constitution has a centuries.' any event, for In the can some comfort English the in take embodied in formal claim, the constitutional of Canada and texts that Australia, these gifts were the "Queen's from Majesty," Excellent even Most though colonials drafted each. stark In contrast, Latin American countries-all of consumers the Civil Law-have changed their constitutions analogous a with regularity to that with rotate crops. Moreover, modern which farmers also as was Mejei the case in Russian, German, and Japan the and Austro-Hungarian these "constitutions" empires, have scant pretense sometimes made of establish regimes that were trying to or either limited. democratic And when constitutional was democracy other the in objective Civil-Law as nations, and Poland after World in Germany War the I, resulting often were polities only one phase in unstable, providing sequence a that quickly cycled back authoritarian to Even rule. the who French, so eloquently "liberty, spoke of fraternity," equality, and to managed through go empires, and monarchies, two two between several republics the adoption American constitutional text and of the of the presidency Eisenhower. Dwight D. the end of World War At appeared that creating and.main- II, it constitutional taining were arts pretty much democracy monopolized by Britain's adhering 5. Treaties the establishing the of Rome to European Economic and Community such as the European Convention other agreements Human Rights, of with requirement its of to judgments of the Court submission Human at of Rights strengthen Strasbourg, case the that nation's now being a constitutional for democracy.

5 REVIEW LAW LOUISIANA 52 [Vol. those that cultures been had cohabitating the with Law. Common History then since been has checkered. more Nevertheless, critic a of Civil the might Law plausibly hypothesize that basic one reason for failures of constitutional democracy lies in legal that system. merely Not does its derivation from codify to efforts the Law of Roman the Empire taint it, its modern but reincarnation was result the efforts of by Emperor the of the French to bring order to his nation and its conquests. However facilely one transfers system's the concept of "sovereign legislator" from emperor democratically to chosen parliament, the image of sovereign legislator, whether a collective body single a or ruler, fits the ill norms 6 limited of government. Perhaps more even damaging, the constitutionalist critic con- might tinue, is the Law's Civil hubris: Tempted, like Adam by and Eve, pride and ambition, tries to it fill every the deity void eliminate left, chaos, all 7 impose perfect and form, bottle up great the When wind. what has ' been called "obsession an for rules formal and procedures" escapes Democratic 6. theorists might look with less than concern constitutionalists would the concept on of popularly parliament elected as sovereign legislator. democratic Still, might theorists that worry notion the unity of that in inheres "legislator," the term especially in of the context Law's'own Civil drive for systemic wholeness a and theoretical might coherence, what impede democrats many see as the necessary of messiness bargaining compromising and a pluralistic in society. Here, such theorists might Civil fear, the Law would move judges codes interpret to and free statutes standing as if they were the product a of mind single overlook and thus even or destroy the myriad of adjustments, not always logically that symmetrical, governmental made possible. action Insofar, however, as one can judge from the last four decades of parliamentary politics in and Italy the Federal Republic of Germany, compromise and bargaining have even abounded, as judges continue to "the of speak legislator." for example, See, use the that of term by the Bundesverfassungsgericht: Income Joint Tax Case, 6 BVerfGE 55 339; (1957) at Bavarian Case, Party 84 BVerfGE 6 (1957) 578; at Homosexuality 6 Case, BVerfGE 389 at (1957) 351; Party Contribution Tax BVerfGE 8 Cases, 51 (1958) at 581; Volkswagen Denation- alization Case, BVerfGE 12 354 (1961) 280; at Party Finance Cases, BVerfGE 20 56, 134 and 119, (1966) 583; at of Privacy Communications Case, 30 BVerfGE .(1970) at Abortion 659; and Reform Case, Law 39 BVerfOE 1 at (1975) occasion, 422. On the has also FCC over carried penchant this the singular for in speaking of "the framer" Basic of the Socialist Law: Reich Party 2 Case, BVerfGE 1 (1952) 602. at These cases are translated and reprinted in edited versions in W. Murphy and J. Tanenhaus, Com- parative Constitutional Jurisprudence (1977); other for examples, see Kommers, D. Con- stitutional Jurisprudence of the Republic Federal Germany of West (1989). Prof. 7. Robert A. Pascal argues French that the model of an all inclusive code is not only the that paradigm need Civil Law does even or follow. He is, of course, correct; it but remains true Napoleon's that at codification efforts have the provided dominant model not only for Europe but for Latin America and, it first when modernize, began to See Pascal, Japan. A Report French the on Civil Code Project, Revision La. II Rev. L. and 25 261 L. Rev. Tul. (1951) 205 (joint publication). 8. A. Christelow, Muslim Law Courts and the Colonial French in Algeria State 38 Christelow (1985). speaking was of the French legal system, but his remarks might apply, a fortiori, to Switzerland and Germany and, to a lesser extent, even to Italy.

6 19TH LECTURE TUCKER 1991) the courtroom wider political arenas, what its proponents claim from to system's are become mortal sins. Orderliness, ra- greatest the virtues might* hone intellectual in- and tionality, comprehensiveness effective struments to between or issues of disputes traditional citizens settle private political When, law. criminal however, leaders apply those mental sets such as the reach of legislative power, the ambit to complex problems privacy to religious freedom, or the quest for compromises of rights and of dozen competing groups, difficulties multiply, interests a among the of issues are far for amenable, if they are amenable at these sorts less rule-bound to all, solutions. Law, the critic might continue, encourages its people to The Civil of undertake engineering that lie beyond human tasks constitutional the bloody of Iraqi Shi'a and Kurds reminded capability. As agonies 1991 Operation the aftermath of in Desert Storm, most George Bush in that their makers do not, perhaps even have decisions consequences No single person or group of persons, however brilliant cannot, foretell. can accurately predict the future or provide rules for or methodical, even Only most general and perhaps the aprincipled in future. that way leaders hope to conquer unforeseen can The Civil political obstacles. prompting to attack the unknown with leaders reasoned Law's tightly and rigid logic to formal rules adherence abstract principles is likely and to counterproductive, if not disastrous; it proliferates rather than be chaos. In the critic might charge, when the eliminates sum, Civil Law mentality invites rigidity and inspires policies constitutions, infects its but principled that impractical. are critic might continue, the Civil Law's Worse, the constitutional tense order judges commitment to leaves to maneuver respectable no room by authoritarian rule. Unable when reconcile defending confronted to constitutional their role in a fixed legal system, Civil- democracy with have Not become panderers to power. judges only did pro- Law often 9 for a corps of prostitutes form Naziism, German fessional judges but, the Occupation, French judges offered similar services at discount during 0 prices.' Civil-Law judges demonstrated flexibility, they When have have often self-advancement, not for the for weal. For instance, done so common War II, Italian judges since managed to turn the protections World have constitutional democracy accords an independent judiciary to great that profit, setting their own salaries, running for private office or elective serving administrative agencies (with the option of returning to the in See Reich I. Miller, Hitler's Justice: The Courts of the Third 9. (D. especially trans. Schneider 1991). See Weisberg, Legal Rhetoric Under Stress: The 10. of Vichy, 12 Cardozo Example L. Rev. 1371 (1991).

7 52 [Vol. REVIEW LOUISIANA LAW bench with seniority credit full toward retirement), and and harassing critics." contrast, In critic might the contend, grew Law Common the up as an effort to curb the monarch's arbitrary power. the Civil Where Law looks sovereign to first prerogative, Common the to Law looks individual liberty. technical Its centerpiece is corpus, habeas the great 2 writ liberty,' a of the not will of legislator. sovereign the important, Equally Law avoids Common the Civil Law's ar- rogance. methodology Its lawyers, instructs subtly and judges litigants, to live with rather than some to remove all attempt walk chaos, to than rather around the try to fill in abyss, when to hunker down the great wind than rather blows attempt to to contain the In it. short, Common Law begins from a presumption limited reason that has capacity to and control understand passion. but wimpishly Perhaps certainly the prudently, Common Law recognizes and avoids than rather attempts to the unsolvable. By solve the preferring inductive approach case-by-case to announcing general principles from then deducting it them, places 3 heavier weight than on on experience of life logic as "the law."' the Essential statesmanship to Common-Law is a willingness, perhaps even an insistence, judges that officials other and public above rise principle. choice of This flexibility over consistency supple prag- and matism as well logic, tight over of living as the experience incho- with our critic in ateness law, spills might assert, over broader political into arenas not encourages and judges but all public only work officials to around within messiness and the politics. of constitutional It them warns 4 disorder. all of life purge to attempting against For the II. having massive problems Italy has been of judges, see with the work G. the Justice of Crisis di Federico: and the System Referendum in on the Judiciary, Italian at Ill, Politics: A Review, P. Corbetta 25 (R. Leonardi and Italian The 1989); eds. Profession Judicial Bureaucratic and its Rev. 40 Setting, Jurid. 21 Introduction (1976); F. Zannotti, to Magistrati Le Attivit Extragiudiziarie dei Le Qualificazioni Ordinari.(1981); Professionali Corpo Giudiziario, del 1985 Scienza di Trimestrale Rivista dell'Amministrazione 21; Costi e Implicazioni Istituzionali dei Giurisdizionali Recenti Provvedimenti e Legislativi in Materia Penzioni dei di Retribuzioni e Trimenstrale Rivista 1985 Magistrati, di Diritto Pubblico his edited volume, 331; and Professionale degli Preparazione dei e Avvocati Magistrati See (1987). of the also Zannotti's remainder Guarnieri, volume, cited above; C. della Magistratura L'Indipendenza (1981); and Pubblico Ministero Sistema e Politico, chs. 4-5 (1984). especially 12. The the United recent rulings of Court McCleskey States Supreme in v. Zant, Ill S. and Coleman 1454 Ct. (1991). S. Ct. Ill v. Thompson. cast a shadow 2546 (1991), continued the on the of Great efficacy Writ. Holmes. Common Law The 13. 0. I (1881). 14. the See, for example, recent systematic on attacks theories of constitutional interpretation as politically by critics R. separated The as Bork, America of Tempting (1990); H. Wellington, Interpreting (1990); and the Constitution and M. Dorf, L. Tribe On Reading the Constitution (1991).

8 19TH LECTURE TUCKER 1991] She to fault the constitutionalist critic. is easy, too easy, It perhaps Law, the and idealizes the Common Civil Law vilifies simultaneously evidence." Her view of selective with performing each task marvelously is systems is simplistic. The Civil Law legal two the of structures the wheeling. claims, nor the Common Law so free she not principled as so graveyard for con- been America historically a has Although Latin deeper than its far problems run that continent's democracy, stitutional Switzerland have long Sweden and the other hand, system. legal On even, one can reasonably claim, stable maintained democracies, stable conquest, except the period Of Nazi for and, constitutional democracies, War World Since Norway. Holland, Denmark, and so have Belgium, resolute con- been have Italy of Germany Republic Federal and II, the since republics three sputtering Despite through stitutional democracies. has not wavered conquest-France except during the Nazi 1871-again in recent decades, has moved its democracy and, in to commitment and democracy. dozen years ago Spain A toward closer constitutional the and have been following regimes authoritarian threw off Portugal false patently is it Europe. Thus Western path other as same of nations democracy. constitutional has Law contaminated the Civil to assert that Civil-Law record of judges during was as the despicable as Moreover, the many of readiness shabby as Italian as of Naziism years the and Common- the record of take special status, their advantage to of judges beauty. An been a thing of constitutional has not always judges Law 6 v. United to Dred Scott.1 Korematsu go need only back American she a Common of product the is parenthetically, if critic, the that One note, might 15. facts bespeak the ethnocentrism. Her reply might well be that, if skirts barely Law culture, task analyst's is, first, to record democracy, the predilection constitutional for an ethnic that her critique is cultural and also respond "fact" for it. She would then account that though in particular instances, ethnicity, and transcends lines of thus and institutional Prof. John W. Burgess, one contrast, may follow divisions same fault lines. In the these racial overtly drew science, American political pioneers nineteenth-century great of the of conclusions: view world from history point of of the the a moment the If we regard for the that we cannot fail to discern all political the institutions, production of of and developed sense, the modern world, have founded been in the of great states America has left no legacies Indian . . . three branches the Aryan race . by of Asia, and as contributions; while yet made no has Africa modern to civilization; in imitation of except nothing, religions, our has done of great all producing facts these that Amer- from civilization. We must conclude for Europe, political directive and Africans cannot properly form any active, Asiatics ican Indians, political modern which shall be able to population produce of part the political of political civilization to con- institutions and ideals. They have no element prop- Hence my receive, learn, follow Aryan example. can only They tribute. be but world, the of American ideal not is commonwealth to that the osition its in application. to national in its origin, but cosmopolitan be the for world-is 405 404, Q. (1895). Commonwealth, Pol. American Sci. of Ideal 10 Burgess, The (1856). 60 v. Sanford, 393 U.S. (19 How.) 16. Dred Scott

9 LOUISIANA REVIEW LAW [Vol. 52 States," its with validation imprisonment, the of without any semblance of of a trial, than more 100,000 citizens because merely their parents grandparents or had born been Japan, in provides also sufficiently a grotesque reminder. Canadian judges also turned blind eyes the toward s incarceration of Japanese-Canadians," though with less moral blame since their nation had not yet added a bill of rights constitutional to its texts. British of judges, course, had no difficulty rationalizing war-time internment or, recently, more denying people of accused members being 9 of Republican Irish Army even semblance the of due process.' all In instances, these was it probably not the pressure of government on these judges but the same pressure within the judge as on the public officials were they supposed check. to churlish But sophistic and as constitutionalist the might critic be, claims her deserve a fuller response, for clear is it some in that important many respects the of Civil-Law new constitutional democracies-Austria, Germany, Portugal, Italy, and Spain, for example-have departed from the model classic legal that of system. have They recognized, instance, for that defendants in criminal cases entitled are some to rights have that been historically more closely associated with the Common than the Civil Law. More significantly, by adopting forms of judicial review, they have violated all of one the Civil Law's central tenets-a restricted role judges for essentially as skilled bureaucrats who apply legal the rules sovereign the legislator has created.?0 For constitutional interpre- tation has inevitably drawn judges, supposedly once politically neutral experts, into the pit bear of policy making. 323 U.S. 17. S. 65 214, (1944). Ct. 193 Co-Operative 18. Committee on Japanese-Canadians The v. Attorney-General for (19471 Canada, 87 A.C. (Can.). (P.C.) 19. For World War'll, see especially Liversidge v. Anderson, [1942] 206. A.C. For dispassionate a description of the "Diplock so-called courts" the British operate the in Counties Six of Ireland, see Finn, J. Constitutions Crisis, in 2-3 chs. for (1991); more impassioned analyses, generally see Under Justice The Fire: of Abuse Liberties Civil in Northern Ireland ed. Jennings (A. 1988). 20. One might make also a plausible argument that, although Quebec's quarrel with the rest of Canada is basically rooted in cultural those clashes, differences manifest themselves, perhaps are even in part different caused by, attitudes toward the roles of law and judges. Quebec's politics have historically demonstrated a suspicion of consti- tutionalism insofar as would protect it minorities Quebec, within not though outside that province. for When, the instance, Court Supreme of Canada invalidated part a provincial of regulation banning use of signs French, except in Allan Singer Ltd. v. Quebec, [19881 2 S.C.R. as 790, a violation of Art. 2 the of Constitution which Act, included among "fundamental freedoms" rights to "expression" "communication," and Quebec responded by invoking Art. 33 Constitution of the This Act. provision allows parliament, provincial or national, to exempt from judicial scrutiny for as as long laws years five touching on certain kinds of rights.

10 19TH LECTURE TUCKER 19911 the nations Central and Eastern As of consumers Europe-all historic of Civil the their to as con- collective Law-begin reconstitute selves might wonder how much there leaders well stitutional democracies, their argument. Even if one grants that is the Civil to the critic's neither radiations stable constitutional Law exclude nor its prudent democracy, a be intensely concerned about lesser person might still If effects. that constitutional democracy's chances system reduces substantially suc- of political leaders cess, consider alternatives. would the Civil to wise be If fact a hindrance, three Law is in available: basic opt choices seem (1) and democracy constitutional for restructure the legal system, eradicating Law and adopting the Common Law wholesale; the Civil opt for (2) constitutional keep some) of the Civil Law intact, much democracy, (or from Common-Law selectively and borrow nations' processes, concepts, institutions; (3) for limited and opt short of con- political reform well mitigating by old stitutional democracy the regime's oppressive more 2 ' Law. Civil familiar the retaining and aspects has a less burdensome An for, assuming academic task, he tenure, does not she or have for the evaluation of responsibility either to take or the constitutionalist Civil Law the that evaluation. of implications Nevertheless, analyst intelligent addresses this critique of any who the Law be Civil should to pretend prudent the virtue of humility enough to concede that he and she is or unlikely be able to offer a definitive to The answer. are enormous, and the critic's methodological obstacles highlights selective history them. rather conceals than Stuart pointed John Mill First, as out, crossnational comparisons and explanations for differences are likely are be, scientifically shaky to incomplete." factors, or "variables," as Many scientists at best, social prefer, stability and development, their effects influence political are and number of nations the complex, small. is we have In rather truth, than put to explanatory "equation" into more variables any have we which to cases them-an invitation, to apply warn, in- statisticians to Second, are variables disaster. likely to those tellectual Mill said, as be, "inextricably interwoven with one another'' that so cannot we disen- the effects has on the others, tangle each isolate impact less much the has on the problem to be explained. Thus we are apt to any one encounter a classic the intellectual infirmity statisticians call case of "multicollinearity." that is also serious doubt More any single substantively, there analyst small group of or can analysts understand the complexities of truly It may that this third option, mild 21. be become known as the "Ro- will reform, solution." manian 22. A System of Logic Ratiocinative and Inductive VII, especially ch. 10, The Collected of John Works Mill (J. Robson ed. 1973). Stuart 23. Id. at 452.

11 LOUISIANA LAW REVIEW [Vol. 52 nations, their and traditions as well as their several dozen histories cultural, political, legal, and economic systems. possess we If a only 'limited recognize to capability the all forces at work, we scant can place in confidence our offer to ability explanations valid the for successes of systems. and failures those methodological These substantive and are difficulties sufficiently se- rious to to tempt scholars problems ignore Law Civil the for presents constitutional stable democracy. But, if we even that accept we cannot provide that an answer beyond convinces a doubt, reasonable might we still able to construct be analyses credible of broader between relations two the "wondering"-the by of sort reflection, Socrates in claimed, which "philosophy begins."2 Wondering out loud in or print might yield useful Civil- insights into Common-Law and systems and, more importantly, nature into the of constitutions and constitutional democ- racy. So, buoyed encouragement, by Socrates' we that begin; but sense orderliness of to dear the Civil Law's heart against cautions at leaping throat of the for problem, the there are definitional to issues address before able being profitably. to reflect The relates first the to polity we call constitutional the democracy, that "thing" second to we call a constitution. CoNsnmoNAL II. DEMOCRACY is It commonplace rhetoric the in every-day of to politics speak of of the nations and of such west countries non-western as India and Japan as "democracies" or, the literature in and law of political science, as "representative democracies." Appeals to the people as "the only 2 legitimate power" of fountain evoke such enthusiastically positive reac- that even tions Stalinist regimes themselves baptized Republics People's Democratic or Republics. However the useful word "democracy" may in be garnering support popular electoral during campaigns, rallying citizens during crises, concealing the or of nature the true government, term that obfuscates probably more often accurately than it describes. Most western "democratic" have tried, nations seldom though sys- tematically, operationalize to political a pair of theories: democratic theory and constitutionalism. In some respects complement the two each other. for They share, example, belief same fundamental in the value: equal and the large amount of respect, dignity, autonomy due and to The Dialogues 24. 2 157 of Plato (M. trans. Jowitt. 1892. "[Philosophy 1937): reissued in wonder." begins 25. The 49 No. Federalist. (1. Madison).

12 19TH LECTURE TUCKER 1991] 6 2 human Yet in other ways the two theories compete, all beings. most in in which they address the authority of the the especially manner freely chosen their representatives. people and/or Theory A. Democratic with differing definitions already The is world overpopulated of still offer some useful and valid democracy, but we might generaliza- 7 2 claim is that the theory's feasible way Democratic central tions. most protect individual dignity and autonomy is for to recognize and the govern by electing representatives. "No right is people to themselves wrote, a Justice Hugo L. Black country," "than in free more precious a voice in the election that those who make the laws under of having of ' good citizens, we must live." as which, theory demands more than elections. Citizens must But democratic the to have participate in self-government by running for also right themselves or other candidates. To make these public office helping closely citizens a bevy of enjoy related all must rights meaningful, freedom to speak, write, and publish, as well as freedoms, such as to associate and to bring about peaceful change. with assemble others As Constitutional Court said, German the U.S. Supreme Court: quoting the right of free expression is one of the principal human IT]he basic is For. democratic order it free, a constituent ... rights a it is free speech that permits continuous intellectual element, for battle opinions the that is its vital element ... discussion, of any certain it is the basis of a freedom at all, "the In sense One might 26. another more practical (economic) basis for democracy: because, use in long run, the is very (costly) to govern a society that does not wish to it inefficient it be to allow the community to govern itself. There are traces of such is governed, wiser in an argument many for democracy. Many rulers, however, have the justifications of worth it found the without, indeed against, the consent of the governed. to govern cost look no further back in history than One 1989 to the bloody massacre in need June Square; 1990 to the Iraqi annexation of Kuwait; or the spring and Tianamen August 1991 law Kuwait's imposition of harsh martial of on its citizens whom summer for Shield "liberated." Operation Desert is most discussion of The theory sophisticated R. Dahl, 27. democratic Democracy Its Critics (1989), and builds on but adds to Dahl's earlier analyses, which cited infra, note 34. also P. Herring, The Politics of Democracy ch. I (1940); Kateb, The in See of Lindblom, Democracy, 91 Ethics 357 (1981); C. Distinctiveness Moral Representative of Democratic (1965); C. MacPherson, Intelligence Theory The Democracy H. (1973); (1960); to Democratic Theory An J. Pennock, Democratic Mayo, Introduction Political (1979); G. Sartori, Democratic Theory (1965); Theory Sartori, The Theory G. of Democracy 2 vols. J. Schumpeter, Capitalism, Socialism, and Democracy Revisited (1987); Y. (1950); Thorson, Democratic Government (1951); T. Philosophy The Logic of De- Simon, of mocracy Walzer, Philosophy and Democracy, 9 Pol. Theory 379 (1981). (1962); 28. v. Sanders, 376 U.S. 1, Wesberry 84 S. Ct. 526, 535 (1964). 17,

13 52 [Vol. LOUISIANA LAW REVIEW matrix, the indispensible condition nearly of every form other 29 freedom." of Democratic theory sanctifies also rights ancillary but necessary to political participation, such certain a as degree privacy of so that a person may join support or unpopular causes without of fear sanctions imposed either by government or fellow citizens? Democratic theorists argue that people, the both as authors and subjects of the law, are not apt to tyrannize themselves. They will try to choose officials who will not enact oppressive and laws will vote out office of who those The do. "mass of citizens," Thomas Jefferson once 3 claimed, "is the safest depository their of rights." own ' The probability of at defeat next the election deters officials from even to seeming infringe rights. on civil Thus democratic theory enshrines popular par- ticipation only not for positive its effect of allowing expression of individual dignity autonomy, and but also for its negative effect of limiting governmental incursions into substantive rights. It was because of this negative function that the U.S. Court Supreme referred voting to 32 "a as fundamental right, political because preservative all of rights." For democratic theory, is a it particular set of processes that make governmental decisions morally binding: the people's freely choosing representatives, their those representatives' proposing, debating, and en- acting policy (and later standing reelection), for then and executive officers' enforcing that policy according to directives from the people's representatives. Whether embodied statutes in or reflected officials' in actions, policy public draws legitimacy its being from the product of authority delegated the by sovereign people exercising their to right act as autonomous human agents. democratic Some concede theorists that these processes offer little protection, beyond what free and meaningful political participation re- quires, for putative rights of either individuals or groups. Thus the Movie 29. Case, Boycott BVerfGE 7 (1958); 198 W. Murphy in Tanenhaus, J. and supra 6, at note 529. also See Court's the comments the in Schmid.Spiegel Case, 12 BVerfGE 113 (1961), D. Kommers, in supra note 6, at 378. 1 30. make point this in some detail in W. Murphy, The Privacy Right to and Legitimate Constitutional Change, in Constitutional The Bases Political of and Social Change in the United States 213 (S. Slonim ed. 1990). 31. Letter John Taylor, to May 1816 28, in Works 11 The of Thomas Jefferson, 527 Ford (P. ed. 1905). 32. Wo Yick v. 118 Hopkins, U.S. 356, S. Ct. 370, 6 1071 1064, (1886). In the of that context case, this was statement a merely dictum, but the Court has since adopted as ruling it law. See Wesberry v. Sanders, 376 1, U.S. 17, Ct. S. 526. 84 535 (1964); and Reynolds v. Sims, 377 U.S. 533, 84 562, S. Ct. 1362, 1382 (1964).

14 1991] LECTURE 19TH TUCKER of the majority"" haunts the dark corners of of "the specter tyranny important ways, this admission may But, in power. democratic several democracy short. for arguments sell claim that in democracies empirical the First, theorists some make socially and religiously, economically, ethnically, are populations whose 3 4 alliances or- Because cumulative. cleavages are political rarely diverse, likely to is interest not dissolve as issues change, the same and ganize against set of groups another with one continually itself, allied find those who take their democracy neat, for by constitutionalism, undiluted Even 33. 27, demonstrates (R. as supra note Dahl Dahl, problematic concept, majority is a rule Walzer, this does not necessarily require. On democracy issue, one that 10-11), chs. at and for a Rousseauian solution. To be legitimate, 27, popular will opts the supra note That simply cannot law valid a is, the generally. will must representatives its of will thus only principally or on burdens imposing against either minorities prejudices by reflect statute. their interests in framing that including Such a limiting principle by not or them sovereign whole who are and thus as a the it is that the people from premise flow may This sort of reasoning also arrangement. rule is no more than a decision-making majority a dis- makes merely law when determine to how (1) about: interesting questions raises discriminates; invidiously it and must-and when complex all almost statutes tinctions-as representatives, non- or elected their determinations: people, the shall make such who (2) similar judges. J. Ely, Democracy and Distrust (1980). makes a officials such as elected judges have paramount obligations American and contends that, in the context, argument of political communication open. keep protect to minorities and also to channels both tenor question, solution to either but the general not an institutional offer Walzer does accept who evidences a reluctance to rely on judges. For democracy those argument of his more term constitutionalism, majority rule is even as now modified what we only by in The Federalist, No. 49 about the necessity also problematic. Madison's Cf. comments letter control passion, and his reason to Jefferson, to of institutions help constructing see infra text accompanying note 49. See also his letter to Jefferson, 17, 1788, October 1790: 4, February It the majority minority? voice of the binds what On the that principle it is but from compact founded a law does nature, not result, I conceive, from of by the fundamental Consti- be required utility. greater proportion might on A judged it were eligible. circumstances Society, any under particular tution if of was necessary; establishment of this principle, unanimity to the Prior, therefore, presupposes the assent of every individual to the and accordingly rigid Theory will minority to the the of the majority. subjects which rule in (emphasis 1973) ed. Meyers (M. original). 233 Madison Founder: the of Mind The James "majority Government" in which he defended 1833, an extended essay on In Madison wrote those by favoring federal-state relations against a challenge in context of rule majority the at 521. Id. interposition. addition In here. work empirical and theoretical Robert done has Dahl A. 34. much R. 27, see Dahl, A Preface to Democratic and Critics, his note Democracy Its to supra The as Court Supreme National a Democracy: in Decision-Making Dahl, (1956); Theory a Polyarchy: (now Emory L.J.); R. Dahl, L. 279 (1957) 6 Pub. of J. Policy-Maker, in the United States: Promise Democracy and Opposition (1971); and R. Dahl, Participation classic work, Truman's 18 (4th ed. 1976). especially also David ch. See Performance, and J. Greenstone analyzed much of the relevant The Process (1960). Truman, D. Governmental 243-318 of Science 2, at Political (F. Greenstein and N. Polsby literature in Handbook 1975).

15 52 [Vol. W REVIEW LA LOUISIANA permanent coalition. The limited scope and of lifespan these common interests, some theorists assert, force democratic politics play to according the principle to the Russian Foreign Minister gave Quincy John Adams in 1815 about diplomacy: Always your hate enemy tomorrow as if he may be your friend, and always love your friend if tomorrow as he be may enemy." your Overall, such checks push public officials who wish be to reelected to as act brokers and compromise clashes rather than adjudicate, themselves or contest winner-take-all in, struggles. In sum, officials be will of wary oppressing any group for fear it will be part of tomorrow's winning coalition and exact revenge. What been has called "federalist a theory tolerance" of for minorities may increase protection for minorities; the majority of community the may agree that certain groups discrimination, deserve but disagree over which groups be should so honored. The claim that when is the hostility of the community its or political elites "is dispersed, ordinary politics moderate will mass sentiments of intolerance, given practical the necessity 3 to forge a majority on issues.': other second A of set protections is cultural. Both the for population as a whole and more particularly for professional politicians, democ- true racy attempts to up, build through opposing groups' negotiating and compromising each with other, an intellectual emotional and environ- ment-a political culture-that fosters moderation. Success the in lab- yrinthine passages of bargaining and negotiation requires to actors internalize certain "rules the of political game" demand that respect the for rights of participants. all initially Even if based self-interest on than rather general moral principles, "rules" those are to likely foster intellectual habits that will influence behavior. Robert A. Dahi claims that democratic "the process is itself a form of justice: a It is just procedure for arriving at collective decisions."" Prudential moral or acceptance the of maxim that, in a democratic context, "some things aren't simply done" likely is to include among those "some things" trampling on individual rights and treating classes people of unfairly. B. Constitutionalism "Constitutionalism" is not an immaculate conception." etymo- Its with kinship "constitution" begets confusion. It is the logical word Quoted 35. in S. Bemis, John Quincy Adams the Foundations and of American Foreign Policy 188 (1949). J. 36. Sullivan, Piereson, J. and G. Marcus. Political Tolerance and American De- mocracy 22 (1982). See also Sullivan, J. J. Piereson, G. Marcus, and Political Tolerance in Context: Support Unpopular for Minorities in New Israel, Zealand, and United the States (1985). 37. R. Dahl, note supra 164, 27, at 175, and Part IV, generally. is more 38. It correct call to constitutionalism than concept a conception, a as Ronald Dworkin would remind Dworkin, us. R. Taking Rights Seriously, ch. 5 (1977).

16 1991] 19TH LECTURE TUCKER to keep mind that, as most European and North American important in 39 define terms, the closeness of their linguistic connection scholars the two not does necessarily relation. Constitutionalists spark an political intimate to their want typically have nation a they but text, constitutional rec- constitution need not employ a written ognize and both: (a) a text, never encapsulated in a document; fully (b) if is probably indeed, and exists, it might, such by its own terms or as au- a document either thoritatively and/or constitutionalism. reject interpreted, democracy two These theories Neither has a common display defect: a supreme pontiff distinguish orthodoxy from who can definitely heresy. Most 4 0 constitutionalists, would concur with J. Friedrich's iden- however, Carl their "core objective" tification of the its in "protect[ing] dignity as self guarding and of "each worth," member as a political the community 4 sphere genuine political autonomy."1 person, of possessing a ' Consti- tutionalism assertion that "[o]ne hundred agrees with Jefferson's and would despots seventy-three surely as An be as oppressive ... one -12 ... for fought we government the not was despotism elective not unreasonable to It that "Pure is argue if Constitutionalists," existed, people a lot of anarchism in their souls, for would such have acutely are they authority. They of that people suspicious all assume are free; solely to protect by nature rights (and do) they their should that for permission rule them, and others permission give to (or is be) limited in scope and time. "Governments are instituted among should 39. In conferences attending Latin America, have found that many scholars in in I treat that only constitutionalism region as whatever fidelity text, meaning to however is rights, currently individual of contemptuous in the admittedly force. I would prefer awkward term "constitutionism" American this for Latin usage. North and Many European constitutionalism as American scholars treat "Liberalism's Although theory." political certainly an historical linkage between the two, there is and share respect for individualism, it is a mistake, I believe, to equate them. they profound people assuming by Liberalism is so varied and vague that what unity Moreover, mean already both images that the "constitutionalism" and "democracy" increases multiple generate. For see Casper, Constitutionalism, analyses, 40. of the American in Encyclopedia 2, at 473-80 (L. Levy, K. Karst, and D. Constitution eds. Mahoney C. Friedrich, 1986); Government and (4th ed. Constitutional Democracy Friedrich, 1969); Constitutional C. Reason of State Constitu- Justice (1957); Hamilton, C. Friedrich, Transcendent (1964); Encyclopaedia in tionalism, Social Sciences IV, of (E. Seligman et al. eds. 1931); the 255 Mcllwain, C. Pennock and (1940); Constitutionalism Constitutionalism: Modern Ancient (J. J. Chapman and 1979); Liberal Democracy (J. Pennock and J. Chapman eds. eds. 1983); Schram, Critique A Contemporary Constitutionalism, Comp. Pol. 483 (1979); of 11 Wheeler, note Greenstein Constitutionalism, N. Polsby, supra F. 34, vol. in and at I- 5, and Constitutionalism: The Philosophical Dimension 95; Rosenbaum (A. 1988). ed. Transcendent supra note 40, at 41. Justice, 16-17. 42. Notes Virginia, in on Writings of Thomas Jefferson 11, 163 (A. Lipscomb The ed. 1903).

17 52 [Vol. LOUISIANA LA REVIEW W Men," of Declaration the so Independence asserts, protect solely to basic and rights legitimacy their maintain so only long that as they offer For protection. constitutionalists, Corwin S. Edward argued, legitimate government is which, trust a it save for the grant of by effected the written constitution, were non-existent, and private they rights, since precede constitution, gain the authoritativeness nothing of from being enumerated though it, in possibly something of security. are These rights words, other in not, fundamental because they the in mention find they instrument; written there mention find 3 4 fundamental. because governmental validate To actions touching individual rights, constitu- contend, tionalists even democracy point a must in to clear terms a prior agreement-whether or not a constitutional text-granting power the officials assert. At root, constitutionalists tend to than more be pessimistic demo- cratic theorists about human nature. constantly are They concerned, obsessed, perhaps with mankind's penchant selfishly to act abuse and 4 public office. the "From George of nature man," purportedly Mason told the at Philadelphia, Convention "we may be sure, who that those have power hands their ... in always when will increase can they ... it."" In Federalist No. 6, Hamilton was even more candid: Although are men the of best to amenable reason, they nature by "are ambitious, vindictive, and rapacious." was Jefferson similarly suspicious: "In ques- ... tions of power be let no more of confidence heard in man, but 6 ' 4 Constitution. the of chains the by mischief from down him bind The 43. Corwin, of Doctrine Basic American Constitutional Law, Rev. Mich. 12 L. 247-248 in Corwin (1914); reprinted 111, Constitution the on 27 ed. (R. 1988). Loss 44. study For an empirical of of political one period the in oppression United States that throws some doubt on many of these democratic Gibson, protections, see Political Intolerance Repression Political and the McCarthy during Scare, 82 Red Am. Sci. Pol. Rev. also M. 511 (1988). See Americans Grodzins, the Politics Betrayed: and Japanese Evacuation Constitutionalists (1949). ample also have cause for embarrassment the over of imprisonment United the Nisei: Korematsu v. 65 S.Ct. 214, U.S. States, 323 (1944). 193 early For the history, period American of restraints when political did prevent restraints not on political expression, The L. see Levy, Emergence of a Free and Press Smith, (1985), J. Fetters: Freedom's and Alien Sedition The Civil American and Liberties Laws (1956). Madison So 45. reports Notes, his in of Records The the Federal Convention of (M. Farrand 578 1787, I, ed. 1911: reissued, 1966, I say Hutson J. ed.). "purportedly" no shorthand we because have the transcription of proceedings, notes only taken by several who participants were themselves engaged in a heated a brief debate. For of discussion the of problems some The here, Creation see Hutson, of the Constitution: The Integrity Record, the of Documentary L. Rev. I Tex. 65 L. Levy, Original (1986); and Intent and the Framers' 1 ch. (1988). Constitution, 46. Kentucky Resolutions in 8 The (1798); reprinted Thomas Jefferson of Writings 475 (P. Ford ed. 1897).

18 1991] 19TH TUCKER LECTURE a On level, constitutionalism normative rejects of primacy the proc- ess. Where individual rights concerned, are legitimacy the public of policy depends on not simply authenticity the decision of makers' cre- dentials the as people's freely chosen representatives, but sub- also on stantive There criteria. are some fundamental that rights government not trample may on, even with the enthusiastic acceptance a of massive majority of the nation, was to for it guard those rights that people subject themselves government. to Constitutionalists would legiti- deny macy law to a that violated human dignity, even it had if unan- been imously enacted to according proper procedures by a chosen legislature after full, open public debate, followed election, free a by then enforced an by executive elected scrupulously observing all relevant administrative rules. Democratic theorists would chant to "amen" a paean to human dignity and autonomy, but balk at they delegating authority define to the such of scope values to institutions not responsible the to people. Dahl As "Just writes: a majoritarian as democratic system no offers constitutional guarantee minority of rights and privileges beyond the primary political all Of rights so citizens, nonmajoritarian democratic arrangements themselves by cannot prevent a from minority using its 47 protected position to inflict harm majority." on a their For part, constitutionalists believe allowing that popularly officials elected to de- termine "the the rules of especially game," where the of individuals rights minorities or concerned, are is, as the proverb Italian it, puts "to make goat the your gardener." The differences here epistemological are as well practical. as Both theories agree that the difficulties in defining exact boundaries of rights and immense. powers are The general response of democratic theorists move is to toward moral relativism. They believe reason that may be great of use silhouetting in general outlines, but of limited in utility drawing precise lines. These latter democratic lines, theorists maintain, likely are quite to be arbitrary, infected heavily considerations by of self Thus interest. they are best not left to principled by judgments public philosophers, but to adjustments elected made by officials who are in close both touch with the citizenry able and to bargain and compromise. Constitutionalists not do deny the difficulties making in defensible judgments about boundaries. they But have greater, though far from total, reasoned in faith inquiry to solve such problems well as in as the capacity of men and women who are insulated what from Jefferson 47. R. Dahl, supra note 27, at 156-57.

19 52 [Vol. W REVIEW LOUISIANA LA termed "the perverse to employ demands citizens"'" of reason that dispassionately. short, In believe constitutionalists questions where that, basic involved, rights of are reasoned quality argument the is it of that votes; of numbers not prevail, should and, for reason to have a fighting chance, through it must operate shielded that institutions are the from public of moods shifting opinion. Constitutionalists suspect that re- democracy's lack of institutional representatives straints on the people's authoritarian an to lead will a They result grant such system. that violate democratic norms, would probably as which it would the means by came fear about. Still, they that leaving to will produce the people" power "all des- democratic potism, not democratic wrote As justice. Madison Jefferson: our In lies in the majority of Governments the power real the community, invasion and of rights the private be to chiefly is not apprehended, contrary to from acts of Government the sense its constituents, from of but Government the which in acts is 9 major mere instrument of the the of number constituents.' the the While accepting government free to of necessity open elections, crosscutting societal divisions, rivalries, culture the and favorable political constitutionalists inspire, processes that democratic the doubt efficacy of these unpopular minorities forces protect to indi- nonconformist or viduals. "The democratic process obviously could not con- exist," Dahl 5 0 cedes, it "unless self-limiting." were is And precisely it agreement with on democratic this theorists among concern consti- breeds that point tutionalists. They believe that, not do simply the long haul, over de- mocracy "self-limiting" is capable of effective the insist and so on necessity of additional institutional barriers limit what to even demo- cratically can government responsible do. rights A bill of "thou replete nots" with biblical shalt enforced and by insulated who judges politically are invalidate to authorized and and executive action legislative violate those rights is they believe to the institution, classic constitutionalist but no one. the only by it is means Distinguishing to legislate, execute, among powers and and adjudicate requiring separate share those powers institutions to common, are also of versions as bi-cameralism are and splinter To federalism." the power 48. Letter to James in 14 The Papers Madison, March 15, 1789, Thomas of Jefferson Boyd 659 (J. ed. the in Latin: "civium gave phrase 1958); Jefferson prava ardor ju- bentium." Letter to 49. October Thomas 1788, in The Jefferson, 17, of Founder: Mind the James Madison 206 1973). (M. ed. Meyers Dahl, note 27, at 154. R. 50. supra Canada, Germany, India, 51. Australia, and the States have Switzerland, United federalism utilized Czech power, to has the limit and Slovak central as Republic Federative

20 19911 19TH LECTURE TUCKER majorities into of the chips, United smaller States employs also a system of staggered elections of two its the for houses national legislature; no a of gain majority can party at single election. both Furthermore, when United States the does President, chooses its it an so indirectly and at election of at which only one-third senators voters. the face C. Constitutional Democracy sum, In constitutionalism risks to tries limit to and liberty dignity of politics. Derhocratic lowering by stakes the those to tries theory limit risks by promoting, the right directly and indirectly, participate to in governmental The processes. the between basic differences theories two lie dispute about the in not any human dignity importance of and autonomy, how best to express but in as protect twin as well those values. One two theories need that argue might the only not other, each clarify their mutual objectives to supplement but also to restraints the 1 2 public power. whether or of on over- of under-use abuses, of each "moral The George Kateb claims, fact is," bottom, at electoral "that, the constitutional restraint system and value cluster of serve or the same values. Each not needs the other practical durability for only and ef- but ficacy, fill out the other's moral also to strain The meaning. between 3 3 affinity." their of indication an is them the one hand, when On basic issues ultimately resolvable are by votes whose jobs of officials satisfying a depend on majority their of minorities constituents, trouble. well Furthermore, may be in as Bruce 4 us, reminds Ackerman the representation of concept itself highly is problematic. governmental That officials the people are by chosen should cause not us officials with to confuse these people The constituents. their representatives and their legally, physically, are different. morally and Precisely people sent what have messages the their representatives is seldom obvious, though it public officials' interest in is that to pretend message one capacious delegation is of In absence discretion. of the of constitutionalism's institutional government the people restraints, by may degenerate into government a small for of segment the people. most probably the and will Republic. Russian Yugoslavia, Federal had of a has course, federal arrangement for some the fall of 1991, though decades, in in it argot of is, the social scientists, disaggregating. an to For argument 52. see Stephen this two effect, Holmes's Holmes, Gag essays, or the politics of omission, rules and 19 Precommitment Holmes, the paradox and of in 195 Constitutionalism democracy, and Democracy (J. Elster and R. 1988), Slagstad eds. well as Cass Sunstein's as Sunstein, Constitutions response, and democracies: epilogue, an at id. 338-42. 53. Kateb, supra note 27, at 361. 54. Discovering Ackerman, the Constitution, 93 Yale L.J. 1013 (1984).

21 52 [Vol. REVIEW LOUISIANA LAW lie in its pro- constitutionalism dangers of hand, the other On the tyranny, of kind a different allow and government to paralyze pensity poorer numerous but over their more wealthy private citizens of that affect and unfairly substantially may paralysis partial Even fellows. the status nation. Preserving within a and of costs benefits allocations injure others; it may also particular groups, serve not only may quo a mild form of priori, if even a determine, to is no way there and whole." a nation as the benefits immobilismo are who not responsible officials allows constitutionalism as Insofar risk severe a runs it game, political the for set rules to to the people how matter no women who, and of men oligarchy an establishing of perceptions, preju- play their own into will put and honest, intelligent rule elected by unrestricted of peril If the dices, and predilections. their system to advance political the will they construe is that officials major the of interests the be to deem they what interests by advancing officials authority to delegating the peril in constituents, their portion of to system construe the will is that they electorate to an responsible not proper. believe is peculiarly, perhaps themselves, what they permit only de- efforts at constitutional unsuccessful of hulks burned-out The history American and Latin Asian, African, recent mocracy littering competing do Not only kind polity. this of fragility of testify to the either do efforts to operationalize so system, the theories strain political theory. or partly constitutionalist, democratic, whether institutions, Designing hardly easy It is of political architecture. problems delicate both, poses the reflect what and accurately respond to institutions that fashion to And even complex problems. to do about government want people reflect officials should elected much how dispute theorists democratic 6 in opinion. Furthermore, refract public should they much how and compromise from separates line indistinct an making, policy democratic Like from coercion. and advocacy from cowardice, concession betrayal, with accom- concern institutions, continuous political among conflict note 52. supra See 55. Sunstein, Electors of the Burke's to Speech of course, were Edmund classic works, 56. The (1861). Government Representative Considerations on Mill's John and Stuart Bristol (1774), Constituency Stokes, and Miller inter see, alia: analysis, bibliographic and substantive a For Concept of The H. Pitkin, Rev. 45 (1963); Pol. Sci. Am. Congress, 57 in Influence Ferguson, The Legislative W. Buchanan, L. J. H. Wahlke, Eulau, Representation (1967); Representative: The Role of the Ferguson, Buchanan, Wahlke, Eulau, System (1962); Rev. Sci. Pol. Am. 53 Burke, Edmund Theory the of on Observations Some Empirical Social the of Encyclopedia in Theory International Representation: Grazia, de 742 (1959); England in Political Representation 1968); and J. Pole, Sills 461-65 (D. ed. XIII, Sciences the about "represen- For controversy Republic (1966). American the of the Origins and the and (1991); discussion Ct. Ill S. 2354 Roemer, Chisom see v. of tativeness" judges, (1972). 37.38 at of Public Law Tanenhaus, The 1. Study in and Murphy W.

22 19TH LECTURE TUCKER 19911 competing modating interests may produce governmental paralysis and popular frustration, sterile, yielding patchwork policies ef- rather than fective solutions vexing to or social problems. economic perhaps, is, It more even construct difficult to constitutionalist in- stitutions are insulated that from outside pressures and protect able to the polity's fundamental values from intemperate the of judgment all officials. public ancient The question "[w]ho the guards guardians?" relevant. remains insulation Political breed may irresponsibility as well as protect integrity. arrogant judge The stranger is no constitutionalist to institutions. survive To prosper, and constitutional democracy needs, perhaps more than other any kind of political system, leaders have both who patience virtues and wisdom, have that in great never been supply. Constitutional also democracy political a needs that culture simultane- ously encourages respect to citizens rights of the citizens even fellow as they own their push interests and hold their representatives accountable for advancing those interests-a culture whose cannot force diminish when private citizens public become That officials. political such a culture will pre-exist constitutional democracy unlikely, making is it necessary the to polity for pull itself up by its own boot helping by straps to create the very milieu which in it Turning flourish. can paradox that into accompli a fait to require is likely generations. Given difficulties creation and maintenance of well as frequent as manifestations constitutional of fallibility democracy's creating in public policies to cope with critical problems, question the be why may any people would establish try to a system. such answer, The as insofar is there one defended be that can reason, by cannot be that sort that spawns polity of prosperity, for surely an accounting score on this would be However mixed. much contrasts 1989 between in the econ- Marxian Central omies of Eastern and those and Europe of the West enraged people former in the constitutional satellites, democracies not have been immune from either painful recessions or catastrophic depressions. During the 1930's, it was to tempting to look Fascism Stalinism and much as ways more efficient with of coping economic problems." A great of deal conventional wisdom still that maintains authoritarian better regimes are able than constitutional democracies cope to with 58 economic Mikhail crises. Gorbachev has used such arguments to justify Naziism's For 57. economic success before World War see A. II, Barkai, Nazi Ideology, Economics: Theory and (1990). Policy 58. For a discussion, see Remmer, Democracy Crisis: and Economic The Latin Amer- ican Experience, World Pol. 315 42 After (1990). intense an of analysis available data, she concludes in Latin that America, least, the at recent record of democratic regimes is

23 LOUISIANA 52 [Vol. LAW REVIEW interrupting democracy toward his push Union in Soviet the to cope with economic And, crises. Boris when Yeltsin, one of Gorbachev's harshest "democratic" became critics, prime minister the of Russian Republic, first his one of was to persuade acts the Republic's parliament to delegate to nearly him plenary power with to deal its economic difficulties. data The regimes linking economic to performance not do reveal truths across that hold and time very space. At however, least, those data show that: (a) neither "the nor market" State the can guarantee prosperity or even a full stomach; (b) "the market's" performance in already developed nations is, the on whole, much better than the State's; (c) but effective without governmental restraints, capitalism can'operate poor the on a with brutality would that redden a commissar's cheeks. iron "The law of that wages" theorists economic announced, after was, all, justification a workers' keeping for incomes at a level barely above starvation. The chronicles of constitutional democracies in promoting sing peace hymn both a a and dirge. nations These may seldom if war ever go to 9 other, each with hallowing but self-government praising and individual rights of their own citizens do not, apparently, colonialism, preclude or violence use of mass carve to and out retain spheres of or influence, even prevent fear of foreign enemies from paranoia into turning in home.6 at oppression rationalizing and politics domestic A reasoned justification constitutional for democracy mainly must on rest its to commitment freedom political individual and liberty. Like ancient Israel, constitutional democracies have often violated cove- the nant made the people themselves with and their posterity, adding to the chancey nature of attachment a such to Again system. like ancient Israel, however, constitutional democracies have almost as often renewed that covenant. worse hardly than dictatorships: military experience of The Latin America the countries since of the outbreak debt crisis [ca. 19821 establishes basis no asserting for authoritarian that regimes outperform in democracies the economic management of crisis. When we control for the magnitude of burden debt the at the outbreak crisis, no of the statistically significant differences emerge between democratic authoritarian and regimes or between new democracies established more and . regimes . . debt Despite . bur- dens that were significantly those than higher of more established regimes, the supposedly fragile new democracies Latin performed just effectively as as their authoritarian counterparts in managing the debt crisis. at 333. Id. 59. See Michael W. Doyle's part two article he in which "liberal speaks of regimes" than rather democracies: constitutional Doyle, Kant, Legacies, Liberal and Affairs, Foreign Phil. 12 & Pub. Aff. 205 and 323 (1983); more and generally, Empires Doyle, M. (1986). 60. See, for example,, the United States during McCarthy the Era: Gibson, supra note 44.

24 19TH LECTURE TUCKER 1991] might One the purpose of constitutionalism is not to argue that from dying the streets but from dying in jail for the keep people in 6 different. It is democracy's task, operating within con- of crime being ' the choose to allow among economic stitutionalist restrictions, to people who will spawn economic among minimum, at officials options-or, 2 people or their representatives will policies.6 wisely choose Whether the whose can question be is a answer post. only judged Constitutional ex and imply end democracy's economic the political not does pledge of beginning, or continuation, of struggle, politics conducted in but the a clearly and more or less open marked for peace, through processes, goals limited include respect for the interests of opponents that always as well It is the "pursuit of happiness" constitutional democracy as allies. happiness itself. promises, not A OF CONCEPTS CONSTITUTION III. constitutionalist theory democratic The normative and aspects of inquiry lead to of a about itself. A systematic the concept constitution faces series analyst immediately a questions: is a difficult of What does any particular constitution include? constitution? What its is What are its purposes? How can a nation maintain and What authority? that of political system? change validly sort are tightly linked, the first two perhaps even more These queries thus others. constitute means to make up, order, or form; the than To nation's constitution should, by definition, contain the a most state's basic ordering-a but only one step, toward understanding. Early step, 3 6 The Aristotle defined a constitution as "the organization in Politics, polis, in of its offices generally, but especially in respect of a respect office all is sovereign in particular issues." Later, he of that which term's meanings: organization widened the "an in state, by offices of a method of their distribution is fixed, the sovereign authority which the and the nature of the end to be pursued by the association is determined, paraphrase a by Fabio Konder 61. remark 1 Latin American the Comparato at of the American Council Regional Institute Societies' Learned Consti- of Comparative held with collaboration Project, tutionalism in Centro Informaciones y Estudios the de Uruguay (1988) at Punta del Este, Uruguay. See his paper, The Constitutional System del of and the New Functions of the Modern State, available from the ACLS, Liberalism E. 45th New York, NY 10017. 228 St., J. supra note 27, See Schumpeter, 62. "the democratic method is that at 269: for institutionalized at political arrangement arriving which individuals acquire decisions in power to decide by means of a competitive struggle for the people's the Schumpeter vote." thought capitalism was essential to democracy and was deeply fearful that "the that would the opt for socialism and thus destroy people" basis of their free society. eventually 63. The of Aristotle, Bk. Ill, Politics ch. § I (E. Barker trans. 1946). VI,

25 LOUISIANA REVIEW LAW [Vol. 52 64 6s and its prescribed." all members is later, Still definition further his linking broadened, as constitution, a pointed Barker Sir Ernest to out, "a way of life.""6 One not need very look to far see that constitutional as texts well formally less as mandated of "ways life" central often violate tenets of both constitutionalist democratic and making theory, "gov- the term constitution" ernment by useful than less have many scholars supposed. A analyst systematic a faces difficult thus decision, set to (1) whether: a up definition real a of which constitution, would require "thing" that 6 meet certain normative to criteria; or utilize (2) to empirical criteria along somewhat lines one the of more of or Aristotle's definitions. The first option has great appeal would that in it deprive authoritarians of one tyranny, cloak for it but would create problems additional of nomenclature. What would call "a constitution" one in that, fact, an ordered authoritarian state? The second less option causes confusion and still allows us classify to constitutions in intellectually useful ways. What A. the Constitution Does Include? Canadians took ago long to step second a aid understanding. They distinguished between constitutional the document larger the and con- stitution." Canadian Indeed, the Constitution Act, 1982, lists a series other of constitutional imbued texts with Canadian the status," and Supreme Court has accepted that the broader constitution cus- includes 70 tom and tradition. the In States, United however, scholars, judges, other public and seldom officials so clearly. speak Often consti- "the which tution" to they seems refer with coterminous the of 1787 text as amended. Almost equally often, as however, constitution" "the implicit their in goes far arguments beyond that document include to interpre- IV, Bk. ch. 64. at Id. I, § 10. IV, ch. Id. at 65. Bk. Xl. Id. 66. at 180. John 67. E. utilizes defends Finn and some this with approach Finn, See J. success. 19, note supra especially ch. I. for See, 68. R. Dawson, example, The Government of Canada (N. rev. ch. 4 Ward 4th For 1963). ed. general discussions of the United in problem the States, see especially H. Horwill, of The Usages the American Constitution Grey, (1925); Do Have We an Constitution?, Unwritten 27 Stan. L. 703 Moore, (1975); Rev. Unwritten Do We Have an Constitution?, L. Rev. Cal. S. 63 107 Murphy, (1989); and W. of The Nature the American Constitution, The Lecture James (1989). 69. Schedule Canadian i, Constitution (1982). Act 70. In of § 6 of the Matter Act, The Judicature 119811 For a S.C.R. 753. bitter American dispute in interpretation constitutional on the role how and tradition of and can interpreters where see the discover it, Justices between debate Antonin Scalia and J. Brennan, Jr., William H. v. Gerald in Michael U.S. 110, 491 D., 109 S. Ct. 2333 (1989).

26 1991] LECTURE 19TH TUCKER conveniently, understandings" practices, traditions, tations, and "original ascribed or emendators. to founders always not if accurately, in across the United universities students beginning of Generations American poring over the quest text in a vainly States have spent time 1 privilege, as review,' executive doctrines judicial for such constitutional innocence, "one person, one vote," of presumption interstate commerce, is It of original understanding. significance interpretive the even or thought it along others, have many with students, these that probable straightforward such apparently interpreters typically ignore that strange reminiscent language in amendment, those the of which, as ninth terms text's listing to construe the forbids officials Ten the of Commandments, exhaustive. as rights of from and similar additions to subtractions is to It observe possible constitutional de- almost every other documents of constitutional the case, for example, the Bundesverfassungsgericht mocracy. early In an federation," of "loyalty to the Bundestreue or the doctrine announced followed: which it since has be- all relationships constitutional In state the federal German constitutional the members and the whole state and its tween by the unwritten members are among governed relationships the Fed- obligation of of reciprocal the principle constitutional 2 7 manner. pro-federal a in behave to Laender the and eration principle that they may have created constitutional the judges Indian the of amendments to legitimacy constitutional substantive determine the practices and interpretations some that inevitable to appears It be text. Mar- while review question about judicial Breckenridge's Senator Compare 71. John extraordinary. pending: "Is it not was 137 (1803). v. Madison. 5 U.S. (I bury Cranch) nowhere appear (in the constitutional intended, it should that this high power was if (1803). 11 Cong. 179 text]?" Annals of J. Tanenhaus, W. (1961), in BVerfGE Murphy and 12 205 Television Case, 72. The 225; at id. 309 the Concordat Case, 6 BVerfGE See (1957), also 213-14. 6, note supra at imbedded has 8 BVerfGE 105 (1958), id. at 229. The FCC Referenda, Weapons Atomic and requires Law's ordaining Basic rule of law a The principles in the "constitution:" other rights are re- basic which "demands that, where proportionateness," "the principle of for protection absolutely for only that ... which is necessary law a may stricted, provide any that ... follows by the Basic Law ... It also recognized legal the interest of subject be a citizen's freedom or property must at least upon encroachment governmental 1 (1970), of Communications Case, 30 BVerfGE Privacy judicial to effective control." and 538; the id. Mephisto Case, 30 BVerfGE at (1971), 173 the see 660-61; at id. also id. 425. at BVerfGE 1 (1975), Case, Law 39 Reform Abortion simple is it their constitutional law is complex, but relatively think Americans 73. may Constitu- Seervai's See, generally, H.M. three-volume work, India's. compared to when interpretive of most notable and dramatic instance The of India Law tional (1983-88). which the in Nath v. Punjab, [19671 A.I.R. (S.C.) '1643, Golak with accretion began the that amendment constitutional on grounds of invalidated Court India a Supreme

27 REVIEW LAW LOUISIANA [Vol. 52 and some portion of these will onto authoritative an text, fasten will sacred the Like and rights. power of affect distributions significantly document a constitutional Islam, and Christianity, of Judaism, scriptures and usually later, or Sooner barnacles. gather likely to is endures that while others of the text, parts erode those encrustations of sooner, some "constitutional although In sum, canon. the into themselves insinuate at constitution," "the from different conceptually be may doctrine" the into will melt doctrines time, some periods of limited for least text. constitutional bringing culture, political a help shape these interactions Collectively, into life" of "a way as constitution a concept of broadest Aristotle's constitutional of process a constant effect, in is, witness we What being. adminis- or as interpretation its operators, even to disguised, creation demo- whether constitutionalist, theory, political as a Insofar tration. is that document and in the document is latent or other, cratic, other on each to act are likely text and the theory(ies) the authoritative, their people, the In turn, government. their and people the on and pre-textual and its on that document act their problems and government, complicate practices. To and interpretations and post-textual theories same the in pull or push necessarily of forces sets these of neither life, theory democratic and constitutionalist evident when as is direction, the affirm and simultaneously solemnly beliefs when cultural or collide body. own her control to right woman's a and life human of sanctity Constitution? the is Authoritative How B. among interaction effective for qualifications essential the of One authori- be text that the is people and practices, interpretations, text, the Indians rights. When fundamental as to abridge so not be amended could Constitution invalidate not courts could to declare that document their constitutional amended further accepted justices the (1971), Amendment 31C, the 25th grounds, Art. on such amendments Golak that all repudiated rather than from retreated they but Nath; Golak of this reversal judges that a new claim doctrine earlier for its substituted The for. Court Nath stood political the structure of the basic that changed down amendments strike legitimately could opinion separate (The (Supp.) (Ind.). I S.C.R. [1973] Case, Bharati's Kesavananda system. held court the later, few years A inieresting.) especially is Khanna H. R. Justice of extensive less this eliminate to designed of amendment new a clauses several unconstitutional S.C.R. of India, (1980] Mills v. Union Minerva change. over constitutional power judicial Art. the terms of changing Amendment, of the 42nd 5 4 and clauses down 1789, striking and procedures Constitution the to amend of Parliament Power entitled is 368, which of provisions the (including this Constitution of "Injo amendment read: Cl. 4 therefor. under made been to have or purporting rightsl made fundamental with [dealing Ill Part 5 stated: Cl. ground." or on any in any court question called in shall be ... this article whatever limitation no be there that shall declared hereby is it doubts, of removal "For or repeal variation of addition, by way to amend Parliament of power constituent on the this article." under of Constitution this provisions the

28 1991] 19TH LECTURE TUCKER tative. Stalin's neither nor Obviously, Mao's reflected "the document texts either constitutional In most basic although fact, ordering." state's ' 7 4 law, few themselves "supreme implicitly to or explicitly be proclaim of receiving sense in authoritative are the only full obedience. To cite Congress example, an American no or seriously taken President ever has constitutional the document's Statement requirement that "a regular and of Account Expenditures Receipts all public the and of shall Money be '' published from time not-so-benign This neglect 1 time. to has often made it has raised reelection easier even as serious questions of ac- democratic countability for theory. Are Constitution's Functions? the C. What one As with authority, can about functions only accurately speak terms, for a constitution in nuanced can play simultaneously several its roles Moreover, polity in theater. reason to a is there no believe, speak will it that priori, same each of effectiveness. part with the degree from oppressing citizens Those functions vary state's a and expanding spreading to a boundaries physical gospel love justice, peace, of and within boundaries. national and beyond A constitutional document has important these tasks It in dramas. may a fig leaf to cloak cruelty with serve as To some gracious rhetoric. extent, constitutional most Juan of not Peron, Au- simply texts, those or assorted African gusto Pinochet, perform a dictators, military such blacks women as and function, United States could have in the testified the force of the fourteenth amendment about most for its first century. of Indeed, Critical Legal Movement the Studies the entire asserts that structure legal American the exploitation of various is a masking charade, 76 males. white of benefit the for minorities 74. For inter alia, explicit Constitution of Australia. Preamble; claims, see, the the Canadian Art. 52; the Constitution Constitution Act, 1982, 1; the Constitution Art. of Italy, Art. 6 (though amended before of Ireland, the into Economic Community, entry European the to Treaties allow of precedence); Constitution of Japan, take the Rome to 98; Art. of the Constitution the and Art. 6. For implicit claims, United States, see, alia, inter the India, of Arts. Constitution 254; the Basic Law of 251 Republic and Federal Germany, of Arts. 20(3), 23, 28(1) (3), 37, 56, and 70, 87a(2), 98(2), 64(2), and 142. U.S. Const. I, 75. art. cl. 1, The Supreme Court has held § 9, 7. provision that the reach of judicial enforcement. United outside Richardson, 418 U.S. 166, 94 States v. 2940 Ct. S. (1974). It difficult to generalize about a group is 76. neo-Marxists, that includes superliberals, avid deconstructionists, especially when that loose association and going is the through throes a generational change. For a lengthy bibliography of the of writings, see Critic's Klare, Kennedy 94 and 461 (1984). Yale Symposium, Critical L.J. The Studies Legal 36 Stan. L. Rev. 1 Movement, contains (1984), articles Critics and Counter-Critics. by variegated movement of the The composition also is illustrated in The Politics of well

29 LOUISIANA W REVIEW LA [Vol. 52 may A text come symbolize to sort this of exploitation precisely because it is not authoritative. On other the a hand, document that speaks authority with may also as operate symbol, a of but the values to which its aspires society foster." to Among the primary functions of such is texts to provide standards the by officials which and citizens judge can the legitimacy governmental of action. Insofar that as text embodies set a of aspirations people for its and not is fully authoritative, its rhetoric fall must of short and reality itself open and its people to charges hypocrisy. of is It possible, though barely so, to conceive of a constitutional text as ordering solely offices. Thus it would to try not enshrine any value, democratic or otherwise, beyond fidelity to its own provisions. This task ordering of offices the is minimum a document would to have assay called be to constitutional a text, but is it probable hardly it do could without so relying on heavily normative some ideas if, for no other purpose, than to the justify ordering. Easier imagine to is text that a would attempt to arrange offices to out carry particular kinds of norms, perhaps of those democratic theory. The obvious most example would document a be that no did than more spell (1) out the processes for electing and reelecting a parliament on the British model, (2) and list as protected only the rights directly and indirectly necessary to achieve free and electoral open con- 8 7 tests. A constitutional text would become more constitutionalist by at- tempting catalogue to a series group of and/or individual that rights extended beyond political participation. Probably, sort that document of incorporate would electoral prescriptions along democratic for lines, by and constitutionalism's large quarrel with democracy lies in what the latter not does do try to than rather what tries it to do. It likely very is that a constitutional text embodies that constitu- tionalist and/or democratic theory will articulate also set a aspirations. of An authoritative text purporting speak to the in name a of might people Law: A Progressive Critique (D. 1982); ed. Kairys the and very different attitudes displayed two by leading members CLS, of R. Unger, The Legal Critical Movement Studies (1986); and M. Kelman, Guide A to Critical Studies Legal (1987). Although CLS began in the United States, no it is longer strictly an American phenomenon. essays For by British "critters," see Critical Legal Studies (P. Fitzpatrick and A. Hunt eds. 1987); and an scholar English written has one of the more trenchant critiques: Finnis, "The On Critical Legal Studies Movement," 30 of J. Am. Jurisp. 21 (1985). 77. especially See Corwin, The Constitution Instrument as and as Symbol, 30 Am. Pol. Rev. Sci. 1071 (!936); reprinted Loss, supra in 43, note 1, at 168-79 (1981). 78. constitutionalist The question immediately arises: would Who enforce rights such if incumbents in parliament decided to violate them? Perhaps the response that would clutter least the polity's theoretical underpinnings would be a version "reinforcing of Ely's representative democracy." J. Ely, supra note 33, especially chs. 4-6.

30 19911 19TH LECTURE TUCKER sketch the of community its authors/subjects are or would well sort become, not their governmental structures, procedures, and like to only standards also ideals, and the moral goals, basic but their rights, by judge their community and wish others, including their which they will judge own Certainly the basic documents of most con- it. posterity, to 9 stitutional such purposes. proclaim democracies example: 79. For Canada: Whereas founded upon principles that recognize the supremacy of Canada is the God law: rule and of guarantees Charter Canadian and Freedoms of the rights The 1. Rights set out in it and only to such reasonable limits prescribed freedoms subject law can demonstrably be justified in as free and democratic society. by a Republic Federal Germany: of The people ... Conscious of their responsibility before God and men, German by the to preserve their national and political unity and to Animated resolve peace in the world as an equal partner the a unified Europe, Desiring serve of a give order to political life for new transitional, period, Have enacted, by to a of their constitutent power, this virtue Law Republic the Federal Basic of for They have acted on behalf Germany. also Germans whom those partic- of to was The entire German ipation denied. are called upon to achieve in people self-determination free unity the freedom Germany. and of Ireland: the Name of the Most In Trinity, Holy from Whom is all authority and to Whom, as our final end, all actions both of men and States must be referred, We the of Eire ... seeking to promote the common good, with due People of Prudence, and Charity, so that the dignity and freedom observance Justice individual order be assured, true social the attained, and the unity of may of other restored, concord established with and nations, Do hereby country our enact, and give to ourselves this Constitution. adopt, Italy: Art. Italy is a democratic Republic founded upon work. Sovereignty is vested 1. the the and shall be exercised in the forms and within the limits of in people Constitution. Art. The republic recognizes and guarantees the inviolable rights of man, 2. social both individual and in the an organizations wherein his personality is as developed, and it requires the performance of fundamental duties of political, economic, and solidarity. social 3. All have equal social standing and are equal before the law, citizens Art. political of race, language, religion, sex, opinion, or personal distinction without It conditions. be the task of the Republic to remove obstacles of an shall economic social nature that, by restricting or practice the freedom and equality in of citizens, impede the full development of the human personality and the and effective all workers in the political, economic, of social participation organization of the country. Japan: We, the Japanese people ... determined that we shall secure for ourselves and with our fruits of peaceful cooperation the all nations and the blessings posterity visited liberty throughout this land, and resolved that never again shall we be of

31 LOUISIANA LAW REVIEW 52 [Vol. How the constitutional and text the larger constitution of any par- ticular nation and fit function together is typically hotly a contested issue. American The debate in 1987 over nomination the of Robert H. Bork for Supreme the Court raised issue the the of extent which to that constitution, writ or large functions small, a as protector of sub- stantive rights. Like Chief Justice William H. Rehnquist,90 has Bork contended that American the constitution-a he term typically but not 81 always restricts to text the -includes much democratic theory (and therefore great protection for participational rights) but little very con- stitutionalism thus (and small protection for substantive rights beyond what elections free demand),8 The United States Constitution is, he asserted, primarily a charter laying out governmental powers. Individuals whose putative rights public policy threatens must either new elect rep- resentatives point or a to specific textual provision protecting in clear- 3 cut their terms putative right. Government need not justify exercise its power of vis-A-vis private citizens beyond showing it that has followed the with horrors of through war the action government, of do proclaim that sovereign resides power with people the and do firmly establish this Constitution. Government sacred is a of the trust the people, authority which for is derived from the people, the powers which of are exercised by the representatives of people, the and the benefits of which are enjoyed by the people. is This a universal principle of mankind upon this which Constitution is founded ... We, the Japanese people, desire peace all time for are deeply and conscious of the high ideals controlling human relationship, and we ... recognize that all peoples world of the the have live to right peace, in free from fear want. and believe We that nation no is responsible to itself alone, but of laws that political morality are universal; and that obedience to such laws is incumbent upon all nations would who sustain their own sovereignty and their justify sovereign relationship other with nations. We. Japanese the people, pledge our national honor accomplish to these high and ideals purposes with our all resources. 80. e.g., See. Rehnquist, The Notion of a Living Constitutibn, 54 Tex. Rev. 693 L. (1976); reprinted W. Murphy, in J. Fleming and W. Harris, ll,.American Constitutional Interpretation (1986). 81. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. I (1971); R. Bork, Foreword, to G. McDowell, Constitution The and Contemporary Con- stitutional Theory (1985); Bork, Struggle The Over the Role of the Court, National Review 1137 (September 17, 1982); Bork, Styles in Constitutional Theory, Yearbook 1984: Supreme Court Historical Society R. Bork, 53; Tradition Morality and in Constitutional Law, The Francis Boyer Lectures on Policy, Public American Enterprise Institute for Public Policy Research reprinted (1984), in Courts, Judges, & Politics 635 (4th ed. W. Murphy and C. Pritchett eds. and 1986); R. Bork, Tempting The of America (1990). See 82. note supra 81. 83. Actually Bork takes more a view restrictive of rights: claimants must not only show the words plain the of constitutional support text their but claim, also that "the framers" of the original document or later amendment being invoked meant to include that right.

32 19TH LECTURE' TUCKER 19911 8 processes. 4 Bork's defeat marked a significant, though textually prescribed final, hardly a vision of the United States Constitution as victory a for a wide guardian a of orbit of fundamental rights. CONSTRUCTINO CONSTITUITON IV. A Although many may have misunderstood scholars and public officials and unwritten written between differences the constitutions," the decision live without a constitutional text may still have to utilize or immense the Anthropologists on a story that illustrates the tell effects polity. plans of university was examining new for president a problem. The noticed there were no paths among the the She campus and buildings. dean the school of architecture why, of he replied "Because the asked and decision only the president can make." Her that's question a next was "Why me?" "Because," the dean explained, "there is a the inevitable point at Some of us want to lay out the paths fine philosophic issue. efficient, and want to wait most see what routes the we think others putting before pavement." students choose in a Why A. Text? One would that among the first questions founders expect, then, address is to lay down would whether paths the constitutional of hard a against at three are strong arguments least text. There very an such tradition and effort. legal and political systems may provide First, existing that adequate to achieve and are if not full constitu- norms maintain, democracy, at least as much as the people tional or can currently want maintain. Zealanders could thus follow the British model; enough New were content their parliamentary system and Common Law citizens with 8 colonists the that enacting constitutional document. avoid ' able a were to an alternative and perhaps stronger grounding for Bork's position: 84. There is the does, serve as a charter for indeed, rights, but it places Constitution U.S. fundamental hands of elected legislators, executives, and in subordinates-not the their the in hands sum, for protecting those rights. In and defining judges-responsibility of might, one my recollection Bork never has, defend his though as based on a theory of who to view interpret more than on much the Constitution shall what is. For a discussion, see M. Foley, The Silence of Constitutions, 85. ch. I especially (1989). Like the Kingdom, New Zealand still has in place a set of 86. United quasi-consti. texts constitution acts or amendments as constitution acts. Despite tutional labelled to titles, these documents are subject to these or repeal by a simple act formal modification Parliament. 1986, Parliament considered a In "to bring together of proposal one into certain enactment of significance," but, as of May, 1991, had provisions constitutional enacted this bill into law. Judges in New Zealand do not claim judicial review. See not Clark, R. Zealand (1987), one of the volumes in the series Constitutions New the of of the World (A. Countries and 0. Flanz eds.). Blaustein

33 LOUISIANA REVIEW LAW [Vol. 52 Many observant Jews have a offered reason similar for drafting not a constitutional document for Israel; for the millennia Torah has provided Jews their with fundamental law. A and second different very for reason not preparing constitutional a text there that is may be insufficient agreement form over and content achieve to any sort of consensus. non-observant Many claim Jews this condition Israel: exists in of "Jews" national, assorted cultural, linguistic backgrounds, professing variety a of religious views, including atheism, holding and widely opinions differing about political the implications a of "Jewish state" have emigrated live to with and Sabras Arabs, people not are who only politically and religiously divided from each also other but among themselves. Despite surface certain similarities, in 1787 the United States was much in a different position. We be must careful not to impose the image ethnically, of the religiously, culturally and diverse of America the twentieth century more the onto homogenous colonists of eight- the eenth century. although And, debates ratification over that show sharp divisions existed among Americans, those splits centered on less cultural heritages and fundamentals political of than theory the extent on to which text new the would carry out a widely shared, if minutely not defined, The ethos. with rapidity Federalists which agreed a to Bill of Rights Anti-Federalists and accommodated themselves to the "new order the for ages" supports this interpretation. The divisive truly issue, Ma- 8 7 claimed, dison was slavery. Seeing the dilemma as one nation with slavery or two nations, one and the with other without slavery, neither nor framers the allowed ratifiers the religion, humanity, simple mo- or 87. Madison states, The to claimed colleagues his told have Philadelphia, at "were divided different into not interests by of their difference other by size, but circumstances; the most material of which resulted partly from but climate, from principally effects (the of) their having not or having slaves." Madison's Notes, M. Farrand, 45, note supra vol. I at 486. John Rutledge of South Carolina the told about Convention slave trade: the "[r]eligion & humanity nothing do to had with this question-Interest alone governing is the with nations-The principle present is whether true question at shall States the Southn. or shall be parties not to the Union." Id. Pierce at II, 364. Charles Butler and Cotesworth Pinckney, also from South Carolina, expressed the same sentiments. See Butler's speech July of 1, at 605, 3, id. Pinckney's and 22. August of at Despite 371. Id. II, being both an undergraduate and alumnus graduate Princeton, of Madison persistently misspelled Pinckney's name as "Pinkney" Rutledge's and "Rutlidge." as course, Of art of the orthographic orthodoxy that at was, more time, to difficult practice. Noah Webster's American Spelling Book, which became popularly known as "the Blue-backed speller," been only had published in The unabridged 1783. version of Dictionary American his of the English Language, the first dictionary full-scaled this side on of the Atlantic, did not appear until In interim, 1828. the Breckenridge John of Kentucky, one of Jefferson's leaders in the apparently Senate, was unsure the correct of spelling of his own name.

34 1991] LECTURE 19TH TUCKER to in way of political compromise." As the White House stand rality the "Oh, Jesus! put of Lawrence Sanders' novels: of one chief it staff in go on forever."'" politics go, and come but morals John, text constitutional a to construct A third strong reason not to try citizens leaders have insufficient experience to be com- and may is that a suitable document. fashion to competent) (or feel themselves petent need believe they need to gather wisdom from their or may well They democracy how in a constitutional to about function experience own what law fundamental of committing to the relative permanence before though well intentioned, mistakes. to out grievous, may turn be Constructing a new constitutional understandable. reluctance This is among the most daunting of political tasks, "as dangerous almost is text of unknown seas and continents," Machiavelli, writing as the exploration 9 of the 1 The murkiness of the past, the Columbus, in claimed. age the future voices with which multiple the present, of confusion the and threatens disasters should arouse bonanzas simultaneously promises heart of any sensible man or woman. in fear the intelligent and human beings under- all self-reflective Furthermore, their remedies for than less stand that their perceptions of reality, no possibly idiosyncratic, and perhaps even are personal, ills, fogged its by longings, and values. Framers of consti- anxieties, held subconsciously They operate behind a Rawlsian "veil of ignorance." do not tutions make reasonably positions and can and economic social understand their arrangements will particular constitutional informed guesses about how s per- affect their fortunes." avarice, "Ambition, and intimately directly south- the compromises constitutional historians generally overlooked was 88. Among of the Congress's passage of Continental Northwest Ordinance the in acquiescence ern other inter slavery in those territories. For details on this and alia, outlawed which, 1787, the Conflict, Slavery, & Lynd, States Constitution, United Class S. compromises, see of (1967). is probably true that many people that the time thought It 8 ch. especially clause that commerce the would some out. was there Moreover, die would slavery belief across government regulate the movement of slaves to state lines and allow the federal well. as 9, I, § See of Art. interpretation trade-a slave domestic the ban even plausible Yale Constitution the The of Slaves, 78 and L.J. 198 (1968). Indeed, Berns, Migration Wheat.) (4 U.S. 17 Maryland, v. McCulloch thought Roanoke of Randolph John that (1819), would sustain congressional authority to emancipate the slaves. See A. Bev- 316 John Marshall IV, at 309 (1919). Life of The eridge, Sanders, Crimes 264 (1990). 89. L. Capital First Introduction, Discourses on the Livius Ten Books of Titus N. 90. Machiavelli, (C. Detmold trans. 1940). the of Beard laid, of course, the most famous charge of the framers A. Charles 91. An the United States as serving their own personal interests, C. Beard, of Constitution (1913). historians Many States of the of Interpretation Constitution the United Economic work. See especially R. Brown, of Beard's have attacked the substance and methodology Beard & the Constitution: The Beard Charles the Constitution (1956); Hofstadter, and (1950); Am. Q. 195 Hutson, The Constitution: An Economic Idea, 2 History of an

35 LOUISIANA LAW REVIEW [Vol. 52 sonal animosity, opposition, party motives other many and not more laudable these," Alexander than conceded Hamilton his as opened he defense of of work American the the Convention Constitutional 1787, of "are apt to operate as well upon those who support as those who oppose 2 ' 9 question. [constitutional] a of side right the the of awful Awareness responsibility a creating of constitutional text and of one's own-and, even more of colleagues'- acutely, one's inevitably must frailties any but hyperarrogant tempt the to ask "what we do have right bind future generations to beliefs particular by our society's goals in our and possibly crabbed how theories about best to goals?" these achieve answer The "wait for wis- and more experience dom" is likely to Pace, be seductive. our critic constitutionalist the of Civil playing Yahweh, Law, a for even single nation, is to be apt an attractive role unattractive to only women. men and the Again American experience may be misleading. generation The a long line stood of 1787 in covenants, of framers of political dating back Compact the to Mayflower of 1620 through charters dozens of for individual and colonies constitutions for states. important, More colonists had agreements those operated some degree with success 3 of The bulk adult, American white, of males alive in 1787 all had for or lives their been much of functioning in systems that had tried, with shortcomings obvious as they as to combine respect were serious, for fundamental a significant rights with democratic measure of government. men the And Philadelphia who at gathered were mostly old hands at such politics within systems. the fifty-five Of were delegates who sup- the attend to posed participated convention, twenty had already in drafting state constitutions, served forty-two had serving or were then in Congress under the Articles Confederation, thirty of had or were members been and state of legislatures, former seven were governors of 9 their 4 states. Document?, & Ratification in The Framing of the Constitution 259 Mahoney Levy & (L. D. and 1987); eds. Nore, Economic Charles A. Beard's the Interpretation of Origins of the Constitution, Const., this 39-44 (Nov., 1987). The 92. Federalist (A. Hamilton). I No. "My motives He continued: must remain depository in the own of arguments breast. my My to be all, will open and may be of judged all." by 93. See, especially The Political Elazar, Theory Biblical Covenant: of Origins and Developments, Modern 4 Publius 3 10 No. at Covenant From (1980); Lutz, Constitution to Thought, in American Political and D. Lutz, 101; id. at of The Origins American Constitutionalism (1988). delegates Two college were 94. also that, office even presidents, an then, required some members political skill. Thirty it is not though lawyers, were that clear if biographical was datum functional For see dysfunctional. details, or The Framing of the M. Farrand, the of Constitution United States ch. 2 (1913).

36 19TH LECTURE TUCKER 19911 contrast with former satellites of Central and Eastern Europe The the The is came in 1989, after more than forty years velvet stark. revolution end very brief period after the for a Except communist domination. of War, known of these countries had World life under of the Second few a democracy. one can make Indeed, sound a like anything constitutional World War II, only argument and Germany that, before Czechoslovakia been could have German The constitutional experiment classified. so with after the in ended democracy 1933 and Czechoslo- Nazis took charge, of when nation vanished into the belly that the Third vakia's 1939 in Reich. 1990, when the newly formed governments of Central and Thus, in Eastern Europe constitution making, hardly anyone under sixty- took up first-hand experience either a citizen or an official under five had as this the of [East] Germany," "In Prime nonauthoritarian rule. part one remarked 1991, "you have no Saxony of working of Minister in has lived under conditions other than a command society or age who This is very big difference with 1948 and West Ger- dictatorship. a about What those people know of what constitutional "9 most many. of citizens comes from books and democracy requires radio broadcasts even most of which had or subsidized by the CIA), television, (some been smattering of conversations with tourists, and, for a precious few, a visits (or to the West. exile) intelligent men women can learn rapidly from the Fortunately, and others. experience one thing, however, to master academic It of is convert legislative is quite another to it an or political drafting; science a people who entire population into new internalized of have a set toward relations the state, society, and about attitudes government, citizens, who not themselves possess rights but are responsible as only their condition. Most denizens of socialist democracies were, for own accustomed obey, not to demand from, bureaucrats. individuals, to as rascals out" was as impractical "Voting option as going to court the an challenge the constitutionality of governmental action. to the last days of the old regimes, Until most common the forms of were conducted masse through political strikes, mass pro- opposition en revolt. riots-all context of a threat of the This legacy of or in tests, or bared fangs does not translate docile into democratic obedience easily of and compromise. processes negotiation parent state the the great had who provided not Moreover, been many goods only services, such as water, electric power, garbage and collection, mass transit, but also and who work where determined would what for how much and how long, where and how well doing children Helping, 95. the East Hunts for Its Bootstraps, He's Tagliabue. N.Y. Times, May As 3, 1991, at A4, col. 6.

37 52 [Vol. LOUISIANA LAW REVIEW would be educated live, what adults and would and food of kinds clothing-how much and prices-would what at available, be what and news was and how much it along of what with kinds of entertainment people could through receive legal media of communications. For men and women who lived all their lives under such regimes, understanding constitutional democracy would be difficult enough. Gen- erating the sense of self-reliance successful a constitutional democracy requires its of citizens demands additional, enormous, and efforts from them-and skilled political leadership for them. Echoing comments heard from hundreds scholars of and officials, public an East German mayor noted: are We moving a controlled from society free a to society based on initiative. personal people Many that find difficult. very Not unemployment, just but concepts like the competitive economy, the variety of options, and need the to make choices com- are 9 pletely new here. 6 Accepting obligations the as as the well benefits of autonomy is probably something few people learn can from other than doing. Among chief the reasons for drafting constitutional a is text the hope reducing of conflict. Spoken words quickly evanesce. After the lapse few of a practice years, and history to tend fuse into legend and * propaganda, and neither content the nor meaning of tradition is ever obvious. In apparent contrast, words embossed onto convey paper an impression of permanence. All run who can read, both and now in generations come. to those When compacts concern fundamentals such governmental as power individual and rights, case the writing for things down becomes very and strong, inclination the of both the Civil and Common Law to put agreements onto paper additional offers reinforce- ment.97 Biblical literary and scholars, however, might warn that written words possess less lucidity, exactness, and permanence than drafters expect. Texts typically create new problems as they resolve ones, old and the new as may be serious as the old. centuries For Jews have quarrelled with Jews the over meaning the of Torah, Muslims have feuded with other Muslims and great done a deal of over killing correct the inter- pretation of Qur'an, the Christians and have shown they can more than hold own their competition in over can who the shed blood most for the privilege of declaring the true message of an all merciful Deity. American The framers recognized the difficulties here. con- When gratulated on excellence the of of the text Gouverneur 1787, Morris Waldemar 96. Kleinschmidt, Mayor Cottbus, of in quoted Unity Kinzer, Brings Many Traumas to East What Was Germany, N.Y. Times, 10, March 1991, L12, at col. 1. 97. Clara pacta, boni as ami, the Romans used to say.

38 1991] 19TH LECTURE TUCKER that the worth "depends replied document's it is on how construed."" terse was why the new text would Madison in less explaining require interpretation: phrases to supply words and copious for language so is as [N]o When the every himself conde- complex idea ... Almighty mankind their own language, in meaning, address to scends his must be, is rendered dim and doubtful by luminous as it the 99 it is communicated. through cloudy medium which sources The were the complexity of confusion, Madison of explained, the relations, political "imperfection" of human conceptualization of the corruption those self-interest brought to people's problems, and that He have added another pair might sources: (1) the rules. creating of for framers of constitutional texts to compromise frequent necessity competing interests, and aspirations; and (2) among values, failure the to think through political problems and carefully rank those of framers seek promote. they to the values text, even a beautifully designed text, does not Nevertheless, that a text does necessarily mean that a not cannot be useful. panacea offer a of years Jews may still be disputing what the Torah thousands After means, and periods Christians the New Testament and Mus- for shorter Qur'an, but documents lims the those Christianity, Judaism, define still them-or similar and is highly Islam. Without writings-it improbable of would religions any have persisted through the centuries. that those that secular the is difficult to contest realm, the American document, In it its despite catastrophic failure in near and its lesser but still 1861 significant before and since, failures helped identify the United has what a States, all about. Indeed, it is the centerpiece of that polity, as is text, so Kohn claimed, "is constitutional intimately identity. That Hans become national the that the two have existence welded with itself 0 0 inseparable." in E. Corwin, Court Over Constitution 228 (1938). 98. Quoted Federalist 99. 37 (J. Madison). Justice Hugo L. Black remained unshaken The No. faith American the written word, at least of the his constitutional text, conveyed in that at and meaning: ". .. I shall not clear any time surrender my belief that a permanent document itself should be our guide ... I prefer to put my faith in the words of that the written Constitution rather than rely on the shifting, day-to-day standards itself to of of fairness Winship, 397 U.S. 358, 377-78, .90 S. judges." 1068, individual Re Ct. (Black, J., dissenting). (1970) 1079-84 Kohn, 100. H. Nationalism 8 Historians and political scientists fre- American (1957). primary to text point one of the that reasons why ideologically based political quently as parties this country have had little attraction: "The Constitution" seems to settle most in basic issues. For example, W. Murphy and M. Danielson, American Democracy political (9th 187-88 ed. For one of the best recent discussions of the Constitution and 1979). political American see S. Huntington, American Politics: The identity, of Dis- Promise harmony, especially ch, 2 (1981).

39 LOUISIANA LAW REVIEW (Vol. 52 Furthermore, audacious of framer of a constitu- the however role text, tional may be it needs that role a be to played, by least at an 0 orchestral performance,' ' time for little does dim allure the to a of temporizing response. And what begins provisional a as solution may into settle permanency, with as happened Basic the Law of the Federal of Republic More Germany. fundamentally, may well be it to wiser 102 nation's a construct politics rather by reason than accident. Founders must address the Alexander question Hamilton the in posed opening paper The of Federalist: societies "whether of are men capable really of or not establishing government good reflection from and choice, or whether they are forever destined to depend political their for consti- tutions on accident and force." The very of drafting process constitutional a document may itself teach citizens and officials constitutional about democracy's implications own for their children's their and Those processes lives. may supply also equally worthwhile learning in experience operate to how system. such a self-consciously Openly and such confronting critical problems as what to it means try to the future bind by the principles words and of the present can educate participants. although And, during early stages its constitution making monopoly a may be rather a of elite, small that group, has much it if collective wisdom, grasp will the necessity of drawing larger segments of the into society activity. For, if a constitution truly will constitute as a people constitutional a of citizens democracy, 0 3 their to consent such a is status essential. Popular participation the in articulation of the principles new for the not polity may only the. be means to such obtain consent, examples the as the of post-War con- stitutions Germany of Japan indicate, and but it the surely is way most consonant with democratic theory. 101. The phrase is Felix Frankfurter's describing the how United Supreme States Court its produces official opinions. Frankfurter, The F. Clause Commerce under Marshall, and Waite Taney 43 (1937). 102. offers a Hungary constitution third option, a a for period of from transition constitutional rule authoritarian to allows choice democracy. This without mistakes the permanence relative western a of constitution. style The United States, had all, after a dozen years under constitution, a transitory Articles the Confederation. of This option, also however, runs It may risks. encourage people a to think of not as constitution governing the future, most especially being a as not higher form of law government to which must Indeed, conform. in the year first transition, Hungary's of parliament the amended the several document dozen times-a requiring only deed vote, a two-thirds no with submission to any other institution or to more the people. A is danger general particularly acute under third this option exercised as in Hungary. A parliament poor a. makes drafting committee for a constitution. may Its members have expertise, they the but are already in power and the temptation to a polity structure to preserve that strong. status is very Philadelphia The 103. Convention debated this issue several especially times; see Ma- notes dison's own his speech on and George of 5 June of July 23. Mason's M. Farrand, note at supra 45, 122-23; at I, and II, 88-89.

40 1991] 19TH TUCKER LECTURE B. Text Drafting the decide If founders constitutional a to text, prepare they have will. taken more they on responsibility themselves than if let decided had to the polity proceed along "naturally" whatever lines developed over one This generations. more or assumption responsibility should cause of up to a set of interlocking founders to face problems. New Culture 1. The Political commitment of Because a constitutional individual a liberty, to can democracy and, perhaps very little tolerate coercion more than any successful other political people to acquire system, a requires set a of attitudes and habits of action that beyond casting votes range far on In short, constitutional election day. survive democracy only can within particular a Its people of political kind culture. being cease must mere denizens and goal of a become citizens. The constitutional text must, simply therefore, not be a but to structure to government, construct a one political can system, that the of a larger constitution, guide formation of a is conducive to life" that "way con- If constitutional democracy. stitutional to flourish, democracy is must its beyond ideals reach formal governmental arrangements and configure, though help not necessarily the in way same or the same extent, most to of its aspects people's lives. it would Thus, new society a to help constitutional if democracy would text not the only a government lay down rules for also but articulate some the principles, at least of hopes will and values, that reconstitute its people. prophesied about As bill Madison a rights of as the part American of constitutional truths political "The document: declared that solemn manner acquire in the character by degrees of maxims fundamental Government, as they become of and free incor- the National sentiment, with porated the impulses of interest counteract 4 and passion."'' Legitimating the 2. Legitimator The of important governmental almost wisdom any be will policy controversial often so will the and government to make authority of the policy has chosen. Constitutional particular it impart can texts a of great deal general principles of law wisdom about and but politics very about little relative efficacy specific the of cope to with options day-to-day the other problems. On hand, a constitutional text if is authoritative, one its functions will of primary to mark the boundaries be M. Meyers, supra note 49, at 207. 104.

41 52 [Vol. LOUISIANA REVIEW LAW governmental of by either authority, through its own or terms relation its to broader constitution. the text constitutional A a source is thus and a measure of legitimacy. But confer the to legitimacy, legitimator must itself legitimate. be And confers what from legitimacy varies to culture culture and to time time 1 5 within any 0 Every culture. single has its own society special ideals, traditions, customs William and values. Sumner wrong Graham was to that claim stateways fundamentally cannot change folkways;Ic0 but it would equally to be wrong that a people believe are culture and their infinitely malleable. aware to Founders have be a that they situation operate in of severely choice. They restricted people as change to are trying abstract well as an system. social and political The founders and values aspirations announce in are text likely the violate to some of what popular currently culture treasures to push beyond and tenets, societal other for goal, after the is fundamental all, There change. is, likely be however, to a limit on number old beliefs the of and customs that the new persuade can order people there is reject, to and number deeply a smaller of widely and beliefs held customs that and founders can their persuade people to renounce.0 maximize the To constitutive chances enterprise's success, founders of must take their account. own past into who Men and women would create a new constitution artificial use cannot either or insemination a surrogate mother. cannot transpose One simply text a constitutional from one no to state another, successfully matter how document that has operated in its context. original own A nation has its history and collective, sets of inaccurate, typically if fuzzy, conflicting memories and Founders of that history. and cannot erase It replace these myths. is highly people probable that if a constitution a accept are to legitimate, as it must some history, reflect their of even perhaps retain some familiar institutions, processes, ends. and proximate To make matters more complicated, the if reconstituting is polity the the founders' goal, must constitutional text than do more much Weber's 105. Max treatment political legitimacy of the is still among most The useful: Theory of Social Organization and Economic and Henderson Parsons (A. T. trans. 1947). Easton, also See D. of Political Systems A Analysis (1965); Life chs. 1, 10-15 Easton, and A Re-Assessment Political of the of Concept J. Pol. Sci. Support, 5 Brit. 435 (1975). This the 106. is assertion W. of central thesis Sumner, of Folkways: A Study the of Sociological Importance Usages, Manners, Customs, Morals (1940 Mores, and lorig. 19061) of course, pub'd and, central was his larger tenet a in faire. laissez philosophy of This 107. makes establishment kind of restriction democracy constitutional of in Islamic difficult, cultures extremely impossible. though not For approach, interesting see an A. An-Na'im, Islamic Reformation: Civil Toward an Rights, and Inter- Human Liberties, national Law (1990).

42 19TH LECTURE TUCKER 19911 the nation's Founders will have to destroy and replace some reflect past. existing institutions and doing, they will probably find processes. so In substitute institutions useful it to and Found- nations. processes of other have to adapt, naturalize, 'and blend these bor- however, will ers, first familiar forms. into rowings to have to founders some prevalent Similarly, are likely attack and customs values as they try to operationalize even their underlying would unorthodox. To minimize trauma, the history deem ideas their framers phrase new or revised values language in which and aspirations for what the society respect historically cherished. It must show has be helpful were founders to make a plausible case that would also ideals least at democracy's some roots in the people's constitutional have new ideals remain clear, even if the history is traditions. Those must hazy. the must make it easier sum, its people to follow for document In constitutional democracy. The text should neither plant of the path along that way nor obscure the fact that the path emotional minefields and requires different values, attitudes, and actions. is new Necessity 3. of The Compromise his force framer will tailor each or her considerations Practical to the re-formed polity in vision of what his or her colleagues of light want. may also keep in Founders that "the people," or must mind powerful groups within "the politically are people," to have their apt diverse versions, of which is likely to be internally consistent own none of which likely to be fully consistent with each other. It and few are for times founder at normal to envy the autocrat who, like a would be will constitutional democracy into existence. could legislator, Rousseau's real world, however, not only will society's broader culture, In the legal system, mutual contagion, and the short-sightedness, and its their of even others pigheadedness, restrict so a host options, founders' will factors such as climate, economics, demography, education, of additional geography, and economic, and social arrangements technology. Political, were to constitutional that conducive democracy in developed industri- nations may yield disaster in alized Third World. Furthermore, the the power interests of foreign nations are seldom irrelevant; indeed, and may be In the closing decade and a half of the they determinative. neither France, nor century, nor, after Yorktown, Brit- eighteenth Spain the establishment of constitutional democracy in the 'an, threatened States. On the other hand, from the end of World War II until United Russians the they could no longer afford either an empire or decided cold war, constitutional democracy a did chance whatever in have any and Eastern Europe. Central potential strength of One for founders is that the oppression source of previous might encourage regimes people, those whose first hand even

43 LOUISIANA REVIEW LAW [Vol. 52 knowledge of constitutional democracy to small, is profess its principles their as own. Such was case the Germans for and Italians World after II, War Spanish Portuguese and in 1970s, the Argentines, and Brazilians, '° Chileans, and Uruguayans in l 1980s. the Central Eastern and Europeans experienced the same reaction in 1989. The far tougher task to is help a people transform rejection an of oppressive system a into positive acceptance a of new political faith. catastrophic A shock, national such bloody as and overwhelming defeat war, in may give founders opportunity wider re-form. to When a nation collapsed has and its older system of values has unravelled, its people may be for ripe radical political, economic, and social trans- formation. immediately One of thinks Germany and Japan 1945; in but in case each mutation, the dramatic as it built was, as on well as broke from the past. General Douglas MacArthur and his staff changed much tried and change to even more Japanese in government and society, shrewdly but 1 9 they built on existing institutions. 0 The emperor lost his divinity, not his The throne. Great Shogun White breathed new life into the parliament the Mejei had and created made it responsible to national a electorate. The administrative and judicial bureaucracies remained largely intact, as most did existing the of legal system, a cousin the of Law. Civil And the occupiers found enough Japanese politicians who had opposed the military to regime staff the re-structured governing apparatus. In the western zones of Germany, the British, French, and Americans provided an outline but a not blueprint new a for constitutional text. Allies The were to able greater put distance between themselves and constitution makers in than Japan because many the of German's framers had been refugees Naziism from and partisans of constitutional de- 108. Chilean Most Uruguayan and had adults lived for many years-and Argentine adults few-in a for nations that had real had claims to being constitutional democracies. giving people these some advantage over Iberian their cousins. 109. There huge is a literature English in the making on the of Japanese constitution and the influence, often heavy-handed, of The Supreme Commander Allied See Powers. especially Cummings, W. Education Equality and in Japan (1980); Inoue, K. MacArthur's Constitution: Japanese A Linguistic and Cultural Study of Its Makings T. (1991); Nishi, Unconditional Democracy: Education and Politics Occupied in Japan 1945-1952 (1982); Kawa, K. Japan's American Interlude A. (1960); Oppler, Legal Reform Occupied in Japan: A Participant Back Looks (1976); Takayanagi, Some Reminiscences of Japan's Commission the on Constitution, in Constitution The of Japan: Its First Twenty Years, 1947-67 at (D. 71 Henderson ed. 1968); Ward, The Origins of the Present Japanese Constitution, Am. 50 Pol. Sci. Rev. 980 Ward, (1956); Reflections the on Allied Occupation and Planned Political Change in in Japan, Political Development Modern in Japan (R. Ward ed. 1968); Williams, Making the Japanese Constitution: Further A Look, Am. 59 Pol. Sci, Rev. 665 (1965); U.S. and Department of State, Report the United of States Education Mission to Japan (1946).

44 19911 19TH TUCKER LECTURE mocracy. High The Allied intervened Commissioner often in proceedings, 2 0 usually but of his were marginal "suggestions" significance. The new document that old, though was much retained that little unique had been The Basic to the Third Reich. Law ideals drew on the of Kant rather than Hitler, a federal reinstituted arrangement whose to back bloodlines flowed Empire, kept a the Holy Roman modified proportional form of representation retained Weimar, from varia- and tions of and parliament of the institutions chancellor that had existed Weimar both under Perhaps most important and the Kaiser. in building the on looked the day past, to the Preamble nation when the divided one: "The be again would people are called entire German upon to free achieve in unity and self-determination the freedom Germany." of AND CoNsTffuriON THE CIvIL V. LAw MAKING Having crooked we several walked miles, return' ready now are to we set to to "wonder" the task out: relationships about the between the Civil and Law a constitutional the of building gist The democracy. churlish constitutionalist of our argument was: The Civil critic's (a) tightly Law's principled systematic, encour- approach to jurisprudence aged rigidly principled to a mind-set too create constitution; a workable and (b), even a miracle if that somehow occurred, rigidity same would democracy constitutional doom short and unhappy life. a to We now, I hope, more accurately assess can Civil the potential Law's contributions constitution making. to of all, reforms will, First some no doubt, probably should possible, be and order to tried be in make systems legal and political the other more with congruent with each and discussion constitutional democracy, but choice restricted of founders' indicates are likely not that they luxury of to have the replacing the Law on Civil basis, at least a at the wholesale not time they same as to construct new are trying a polity. From constitutionalist's perspective, a prime a candidate here might version of the Common be some corpus. habeas is Law's It necessary not to a panegyric recite process to to its potential, this acknowledge the in hands independent judges, of curb arbitrary to power. Chile. during In Pinochet's dictatorship, General organization the Solidarity, for civil rights conservative led the by politically of Auxiliary Bishop Santiago, hundreds filed petitions for the analogous of amparo writ of in the people name of Those arrested. secretly lawsuits secure the did not The work in English on the 110. standard of the Basic making remains J. Golay, Law The of the Federal Republic Founding Germany (1958). also L. of See in Decision Clay, Germany The Papers of General Lucius (1950); Clay: Germany 1945-1949 2 D. (J. vols. Smith 1974); and D. Bark and D. Gress, ed. History of West Germany I, part 3. A (1989).

45 LOUISIANA REVIEW LAW [Vol. 52 prisoners' freedom, but they usually forced the government concede to was it holding prisoners the and prevented their winning General's the special prize-a helicopter one-way flight the over Pacific. Judicial second a review, obvious constitutionalist reform, has be- come among common Civil constitutional Law democracies: Austria, Belgium, Chile, Federal the Republic of Germany, Greece, Hungary, Italy, Portugal, Spain, Turkey, and, limited to a extent, Switzerland, are among the Law Civil nations have that adopted variations on Hans Kelsen's plan a constitutional for court."' Argentina has historically modeled its supreme on court the that of States, United while France 12 has its own idiosyncratic institution for constitutional review." Whatever the to tinker need with the Civil Law, the question remains whether system that hampers constructing constitution a for consti- a tutional democracy. the all For methodological reasons offered earlier, impossible it is give to definitive a answer. The critic albeit listed, in exaggerated the fashion, dangers major the Civil poses. Law A defender a can offer partial response pointing by to advantages that system accords constitution's a founders and interpreters. Most immediately apparent the is Law's Civil historic tenderness toward private property. Constitutional democracy does presuppose not a capitalistic economy. It began the United in States that before nation knew capitalism, and has it survived in mixed the economies of western industrial nations and in the quite different economic milieux India of and Japan. What a constitutional democracy does require is the practical availability of and legal strong protections means for through which its citizens achieve can significant a degree economic of autonomy. And, a without ranging widely right to private property, are likely they to exist wards as of the the state, as histories of Maoist Central China, Eastern and Europe, and the Union Soviet amply demonstrate. More fundamentally, the of core the constitutionalist critic's argu- may ment wrong. be What she as alleges the Civil Law's major fault- its insistence on completeness, its on reliance logically ordered principles and to rules not order a merely set of specific regulations to but structure an entire system-may an be immense political virtue for a nation in the process of reconstituting itself constitutional a as democracy. is It certainly true intellectually that rigid men and women influenced by the Civil Law could transform critic's the of the word nightmare in flesh. II. For a broad overview this of institution, see Cappelletti, M. Judicial Review in the Contemporary World (1971); Cours and Constitutionnelles Europbennes et Droits Fondamentaux (L. Favoreu ed. 1982). See 112. especially L. Favoreu and Les L. Philip, Grandes du Dcisions Conseil Constitutionnel (4th 1986); ed. Judicial Morton, Review A France: in Comparative Analysis, 36 Am. Comp. J. of (1988); L. 89 and Vroom, Constitutional Protection of Individual Liberties in France: Constitutionnel The Conseil 1971, Since 63 Tul. L. Rev. 265 (1988).

46 1991) 19TH LECTURE TUCKER definition, prudent men and women are neither blind fanatics But, by ideologues nor apply set formulas to life. Indeed, who rigid mechanically the "Civil mind" could push founders, and characteristics the of Law are through of what they implications think the later interpreters, to principles need not prevent constructing. Explicit statements of their problems. the contrary, clear On of unforeseen to adaption enunciation adaption to changing circumstances by ranking principles might facilitate and arranging processes to foster those ends. values and objectives are cleanly substance Process and not separable; the two inevitably This relationship may seem plain to people of influence each other. but it sometimes escaped extraordinarily able scholars common sense, has would Common systems."' The Civil Law in not nec- judges and Law founders or interpreters with essarily wisdom, but that infuse greater intense with ordering and ranking principles and values system's concern before would the claim that substance and process, these thrust officials and principles powers, are intricately and and rules, rights like related, strengthens the ancient enemy, ignoring those relations chaos. accustomed hearing that the success to their found- are Americans of due to a genius for setting down broad principles that ers was their 4 "to the various successors adapt could affairs.""1 crises human of But their success the the strategy was of good fortune to contributing framers' in a society that in and large shared their goals and, at operating by general approved their means."' The level, of the a flexibility Common with its apparent inattention to Law, the American framers principle supposedly into political practice, may be precisely what is needed put a society has already internalized many of constitutional de- for that mocracy's values. societies like those of Central and Eastern Europe who what But of those traditions lack to wait generations not obtaining and do wish before [ordered] liberty"? Consciously and the trying "blessings of carefully and to define principles into rank logical whole, and organize goals, a J. Ely, supra note 113. Laurence H. Tribe makes this point most emphatically E.g., 33. Tribe, Puzzling Persistence of Process-Based Constitutional Theories, 89 Yale L.i. in The For the spirited defense of process as (1980). best defense of constitutional 1063 a L. see Process of Lawmaking, 55 Neb. Due Rev. 197 (1976), *who democracy, Linde, his cue from Alexander M. Bickel's claim took "[tihe highest morality is almost that always morality of process." Bickel, Watergate and the Legal Order, 57 Commentary the 25 (1974). message echoed Bickel's argument in The Supreme Court and the 19, This Dangerous Progress and The Morality of Consent (1975), if not The Least (1970), Idea of The Court at the Supreme of Politics (1962). Branch: Bar McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 415 (1819). 114. 115. Many factors, of course, contributed to the success of this constitutional other not of among which was the great wealth within the huge space endeavor, the least People commonwealth. analyses American some of these linkages, see D. Potter, For of of Plenty: Economic Abundance and the American Character (1954).

47 52 [Vol. REVIEW LAW LOUISIANA of teaching private be an essential way may to procedure fit substance to constitutional democracy. new officials are and who public citizens in a culture, depth lack democracy constitutional of roots the more The school- as "Republican function must documents foundational the more is built polity the which on principles the articulating masters," clearly are, critics and clarity-these serves. Order, coherence, it and the values strengths. Law's greatest defenders Civil the and agree, United the between on this point contrast miss It is difficult to the of In- Germany. The Declaration Republic of Federal the and States but polity, principles of the American basic the forth dependence sets text. And separate from the constitutional a document is contained in it to utilize the Declaration as a the United refuse judges most in States In other on the Germany, hand, interpretation. constitutional for basis out sets the polity's fundamental the Basic Law explicitly of text the inviolable. be shall of man dignity principles: begins: Article 1 "The state of all authority." Article protect be shall the duty and it To respect additional principles: 20 lays down social is a democratic and Republic Germany of (1) Federal The state. federal be shall the from It people. authority emanates All state (2) voting and means of elections and by the people by exercised and organs. judicial specific executive, legislative,, by constitutional the order; the to subject be Legislation (3) shall ' 6 justice. and law by bound be shall judiciary the and executive change would the amendments that 79 forbids Article constitutional federal arrangements. or abolish 20"7 or 1 of Articles terms The answer, statements of principle? explicit need such Does a nation not, probably 1787, of Americans depends." "it be must For of course, has States United the Even though closed. not is issue that even though a have avoided the country may two centuries, more than survived tried to resolve the founding generation had the War Civil bloody after For Germans slaveholders. rather placate slavery than problem of the Europeans, response is and II, War and Central Eastern World yes. probably have shall the a fourth paragraph: "All Germans added the 1968, In 116. Germans should that to abolish constitutional order, or person persons seeking resist any to right possible." be remedy no other the fourth question about the validity of raises an prohibition This interesting 117. added of 1968 to Art. 20. amendment the paragraph that

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